FEDERAL COURT OF AUSTRALIA Sagoa v Minister for Immigration and Border Protection [2017] FCA 418 File number: VID 141 of 2017 Judge: PAGONE J Date of judgment: 24 April 2017 Catchwords: MIGRATION – application for extension of time – significant delay without satisfactory explanation – no merits of claim – whether decision was unreasonable – whether there was no evidence – relevant and irrelevant considerations – error of law – procedural fairness Legislation: Migration Act 1958 (Cth) Federal Court Rules 2011 (Cth) Cases cited: Nigam v Minister for Immigration and Border Protection [2017] FCA 106 Parker v The Queen [2002] FCAFC 133 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 Tupkovic v Minister for Immigration and Border Protection [2017] FCA 73 Date of hearing: 31 March 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr A Yuile Solicitor for the Respondent: Australian Government Solicitor ORDERS VID 141 of 2017 BETWEEN: IMO KELLY SAGOA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: PAGONE J DATE OF ORDER: 24 APRIL 2017 THE COURT ORDERS THAT: 1. The application to extend time within which to make the application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PAGONE J: 1 Mr Sagoa applied on 20 February 2017 for an extension of time pursuant to r 31.23 of the Federal Court Rules 2011 (Cth) to lodge an application which he ought to have made by 23 September 2015 to review a decision of the Minister which was made on 12 August 2015 to cancel Mr Sagoa's Class AH Subclass 101 Child (Migrant) visa. The Minister cancelled Mr Sagoa's visa on the basis that Mr Sagoa did not satisfy the character test under s 501(6)(a) of the Migration Act 1958 (Cth) ("the Act"). Mr Sagoa had been notified on 19 August 2015 of the Minister's decision to cancel the visa and any application by Mr Sagoa to review that decision was to have been made within 35 days. His application on 20 February 2017 to extend the time in which to seek to review the Minister's decision was made some 16 months after the expiry of the time by which he was to have applied. 2 The Court has power to extend the time within which Mr Sagoa may make an application to have the Minister's decision reviewed. Section 477A of the Act provides: (1) An application to the Federal Court for a remedy to be granted in exercise of the court's original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order. Rule 31.23 sets out the requirements for an application for an extension of time and provides: (1) A person who wants to apply for an extension of time within which to lodge an application for the review of a migration decision under section 477A(2) of the Migration Act 1958 must file an application for extension of time, in accordance with Form 67. (2) An application for an extension of time must be accompanied by an: (a) An affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application was not filed within time; and (b) A draft originating application that complies with rule 31.22. An application for an extension of time must satisfy the Court that it is necessary in the interests of justice to order an extension of the time within which to make the application. An application must provide an adequate explanation for the delay and have sufficient merits to justify granting an extension: see, SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [19]; Parker v The Queen [2002] FCAFC 133, [6]. 3 Mr Sagoa's explanation for his failure to make his application within time was that he had not seen the document containing the Minister's reasons for the cancellation of his visa until January 2017. Mr Sagoa claimed that he had not been given the statement of reasons at the time when he was handed a letter stating that his visa had been cancelled and was taken immediately to Villawood Immigration Detention Centre. Mr Sagoa's claim is, however, contrary to other evidence. It appears from other material in the court book that an officer of the department hand delivered to Mr Sagoa on 19 August 2015 the notice of visa cancellation together with a statement of the Minister's reasons. The formal notification of cancellation of the visa was in a letter signed by a case officer identified as "Danielle". It consisted of three pages on which the third was typed a form for Mr Sagoa to acknowledge receipt of the notice and receipt of "a copy of the documents (issues paper and attachments, statement of reasons) relating to the decision to cancel the visa". Mr Sagoa did not sign the acknowledgment of receipt but the departmental officer wrote on the form "client refused to sign" and added "documents handed to client". The specific reference to "documents" in the plural makes it probable that the case officer did hand to Mr Sagoa the issues paper and attachments, including the statement of reasons which Mr Sagoa claimed that he did not receive until January 2017. It is more likely than not that Mr Sagoa had received the statement of reasons on 19 August 2015, contrary to his claim of not having done so. 4 The failure to have received the statement of reasons until January 2017 would, in any event, not be a satisfactory explanation for Mr Sagoa's failure to have commenced proceedings within the 35 day period provided for, or within such earlier time closer to that period than when he made the application on 20 February 2017. The presumed absence of the statement of reasons was not an impediment to Mr Sagoa applying for review of the Minister's decision or to Mr Sagoa seeking to obtain a copy of the reasons. Mr Sagoa was undoubtedly aware on 19 August 2015 that his visa had been cancelled on 12 August 2015. On 19 August 2015 he received the notice of visa cancellation and was taken into custody. He did not then pursue any challenge to the visa cancellation but did pursue other avenues to remain in Australia by making a protected visa application and by subsequently applying for judicial review in relation to that application. The fact that he may not have received a copy of the statement of reasons on 19 August 2015 (even if his claim of not having received them was accepted) does not explain why some 17 months passed before Mr Sagoa sought to apply to have the decision reviewed. 5 The application for extension of time should also be dismissed because the grounds relied upon by Mr Sagoa to review the Minister's decision have insufficient merit to warrant granting an extension of time within which to make the application. Mr Sagoa's application under s 476A of the Act set out seven grounds in support of the relief sought. He also filed an affidavit dated 20 February 2017 containing more generalised grounds of complaint and on 16 March 2017 filed an affidavit with submissions elaborating upon the grounds he relied upon. Mr Sagoa was unrepresented at the hearing but made further submissions at the hearing including submissions read out by him from a typed document which was given to the Court and to counsel for the Minister. In paragraphs 3 to 9 of his affidavit dated 20 February 2017 Mr Sagoa said: 3. The respondents decision was unreasonable. 4. The respondent took into account irrelevant considerations. 5. The respondent failed to make relevant considerations into account. 6. There was insufficient evidence or no evidence to support various findings made by the respondent. 7. The respondent failed to properly exercise his discretion under s501 CA and s 501CA (4) of the Migration Act 1958 (Cth). 8. The respondents decision involved an error of law. 9. The respondent in making the decision did not comply with the rules of natural justice and the applicant was denied procedural fairness. The grounds were stated as follows in the originating application for review filed on 21 February 2017: 1. The Minister did not give the applicant written notices that sets out the original decision particular of the relevant information in the possibility of the applicants visa cancellation. 2. Did not invite the applicant to make representation to the Minister, within the period and in the manner ascertained in the accordance with the regulations, about revocation of the original decision. 3. Did not receive 'statement of reason' when the Department For Immigration And Boarder Protection officials came to my house on 19 August 2015 only with the letter that said my visa was cancelled and they took me straight to Villawood Immigration Detention Centre that is also the reason why it took me so long to lodge an appeal had not seen the document to get advice on it until recently. 4. The Minister only assessed the information set out in the issue paper and had not considered documents why my visa cancellation to be revoked. 5. The Minister misapplied s501 CA of the Migration Act by referring to the 'principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia' in circumstances where there is no such "principle". 6. There are no police evidence before the Minister to justify the Minister's conclusion that I had continued in any sort of criminal activity re-offending or any pending charges. 7. The Minister concluded that the expectations of the Australian community were that I should have my visa cancelled, however the Minister did not define those expectations even though I had been out in the community for 15 months completed parole and was permanently employed. None of these grounds have sufficient merit to warrant the extension of time sought by Mr Sagoa. 6 The first three grounds in the originating application filed on 21 February 2017 were perhaps related only to the application for extension of time rather than intended as a basis to challenge the decision made on 12 August 2015 to cancel his visa. There is, however, no substance in the first three grounds to the extent that they should, in fairness to Mr Sagoa, be construed as a claim of his having been denied procedural fairness by the Minister in making the decision on 12 August 2015. On 13 March 2014 Mr Sagoa had been given written notice that consideration was being given to the cancellation of his visa under s 501(2) of the Act. On 28 March 2014 Mr Sagoa signed an acknowledgement of having received the notice of intention to consider the cancellation of his visa under that subsection and he completed a personal details form for the purposes of s 501. On 26 March 2015 the department sent a further letter to Mr Sagoa inviting him to make further comment to which Mr Sagoa did not respond. Mr Sagoa claimed at the hearing that he had not received the further letter of 26 March 2015 but the letter was sent to Mr Sagoa by registered post at his address and the copy of the letter in the court book contained the registered post reference number. 7 Mr Sagoa's fourth ground was a claim that the Minister had failed to take into account information described as having been set out in the issues paper, and that the Minister had not considered what were described in Mr Sagoa's grounds as "documents why [his] visa cancellation should be revoked". Perhaps the ground was intended to rely upon Direction 65 given by the Minister on 22 December 2014, however, the decision in this case was made by the Minister personally and Direction 65 did not have to be followed. The further material filed by Mr Sagoa on 16 March 2017 included further submissions under the heading "The Respondent failed to take relevant considerations into account" stating: The Minister in making its decision relied upon the communitys corrections officer Ross Murdochs report that had suggested that my conduct on parole has been of a "boarderline". Even though this boarderline individual was permanently employed he still managed to complete parole had attended all the appointments that was bestowed upon him never re-offended whilst out on parole. I had also tested positive for methampehtamines in 1 out of many tests was shocked had told Mr Murdoch that I had dinner with friends then we went out clubbing but didn't know what happened the rest of the night or the company was in. I had mentioned this to him and also asked him voluntarily if he wanted too I would be glad to take a test every week so it was to show that it only had happened on that specific night. Mr Murdochs report suggested the Level of Service Inventory Revised (LIS-R) assessed me at low to medium risk of recidivism as close to virtually nil as proved. The Minister had only taken into consideration the negative things about this boarderline indvidual when he is not even taking into consideration about the improvement he has made since his release from prison and changes he has made to his family and most importantly himself. The Minister have also considered Honourable Justice Kings view that while he could not find that I had a "good prospect of rehabilitation" he did find that I had "a reasonable prospect of rehabilitation considering my age and limited past criminal offending." as it explains in paragraph 27-28 in the statement of reasons. Also in Mr Ross Murdochs report states that getting in contact with my mum was impossible even when my mums number has been the same for years he failed to contact her within that 12 months period. Your Honourable Justice Pagone the effort as Mr Murdoch reffered to might have to be the worst effort in history for a parole officer to get in touch with his/her parolees parents. In respect while in prison and now in immigration detention centre have had no incidents reports in both imprisonment and counting. Even been escorted to court the serco officers dont put restraints on me doesn't that speak for it self. The system did work on me I have definitely learned my lesson am proud to say yes I was blind once but now I see. These submissions took issue with the findings made and the conclusions reached by the Minister, but do not establish jurisdictional error. It is clear from the Minister's decision that the Minister took into account a wide range of matters including matters favourable to Mr Sagoa. Mr Sagoa is understandably unhappy with the findings made by and the conclusions reached by the Minister but an application for judicial review is confined to legal error and does not permit a review of the merits and findings of the Minister which were based upon the materials he was able to consider. 8 Ground 5 would seem to rely upon what was said by Collier J in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465. The further material filed by Mr Sagoa with his affidavit on 16 March 2017 also relied upon what her Honour had said in Tesic. In that case her Honour decided that references in a statement of reasons to a privilege as a "principle" had distorted the Minister's decision making process. Language such as that considered by her Honour in Tesic was also used by the Minister in the statement of reasons cancelling the visa of Mr Sagoa. In Tesic Collier J said at [53]-[57] 53. In his statement of reasons before me, the Minister referred to this "principle" of a "privilege" a number of times. Critically, I note his statement at paragraph 31 where he said in relation to the issue of protecting the Australian community: I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are law abiding. 54. This statement was complemented by paragraph 55 in the Conclusion to the statement of reasons where the Minister said: I am mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 55. I do not accept that the statements of the Minister in respect of "privilege" in this case could properly be confined to rhetoric expounding the relevant considerations concerning Mr Tesic's criminal history and the importance of protecting the Australian community. 56. The fact that the Minister "took into consideration" that remaining in Australia is a privilege that Australia confers on non-citizens indicates that the decision making process was distorted. The "principle" coloured the Minister's reasoning process. The Minister approached the decision from that perspective. As was explained by the Full Courts in both Stretton [2016] FCAFC 11 and AZAFQ [2016] FCAFC 105, that perspective was not correct. The fact that the Minister subsequently repeated the statement concerning privilege in paragraph 55, elevating it to a "principle", reinforces the point that the Minister attributed importance to this irrelevant consideration in reaching his decision. 57 The statement of reasons in this case may be contrasted with that of the Minister in Stretton [2016] FCAFC 11, where the Minister referred to the "privilege of being able to remain in Australia" in the conclusion, and in the course of elucidating the expectations of the Australian community. Similarly, in AZAFQ [2016] FCAFC 105 the Minister summarised his reasons for cancelling the appellant's visa, including the generalised statement that non-citizens who committed serious, violent offences should "generally expect to forfeit the privilege of remaining in Australia". Unlike in these cases, the Minister in the statement of reasons in Mr Tesic's case referred to the "privilege" as a principle of law referable to the exercise of the power, rather than a general policy statement. Her Honour's decision was distinguished in Tupkovic v Minister for Immigration and Border Protection [2017] FCA 73 where Robertson J said at [33]-[36]: 33 On the facts of this case, however, I do not accept that the decision-making process was distorted, compare Tesic at [56], or that the Assistant Minister referred to the "privilege" as a principle of law, compare Tesic at [57]. In my opinion, the Assistant Minister was doing no more than taking into account a statement of policy. It follows that I do not accept that misunderstanding the "privilege" as a principle of law coloured the Assistant Minister's reasoning process, compare Tesic at [57]. 34 I reach this conclusion independently of the reference in cl 6.3 of Direction No 65 to the principle that "Being able to … remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding…" 35 In my opinion, Tesic is to be distinguished. In Tesic it was said, at [57], that the statement of reasons was to be contrasted with that of the Minister in Stretton where the Minister referred to the "privilege" in the conclusion and in the course of elucidating the expectations of the Australian community. In Tesic, at [57], it was held that the Minister in the statement of reasons referred to the "privilege" as a principle of law referable to the exercise of the power, rather than a general policy statement. As I have said, in my opinion this did not occur in the present case. It is this which, at [56] in Tesic, was held to be an irrelevant consideration. 36 In so concluding, I have not made a bare comparison of the language used in one decision with the language of another. So to do, in my opinion, would be to mistake the application of a legal principle with the principle itself. It is therefore not determinative that a sentence in [31] and a sentence in [57] of the Assistant Minister's statement of reasons is identical or almost identical to the sentences in the Minister's reasons in Tesic reproduced at [53] and [54] of the judgment in that case. In Nigam v Minister for Immigration and Border Protection [2017] FCA 106 Perry J considered both of the decisions in Tesic and Tupkovic and in the case before her Honour concluded at [73]-[76] that the language used by the Minister had not elevated the "privilege" of being granted a visa to a legal principle but that the Minister had employed "inapt rhetoric" in referring to government policy. 9 Her Honour made a specific finding in Tesic on the construction of the statement of reasons in the specific case before her Honour. The words used by the Minister in that case, and in Tupkovic and Nigam, are similar (and in some respects identical) to those used by the Minister in the statement of reasons given to Mr Sagoa. They were not, however, used in the sense found by her Honour in Tesic to elevate what was described as a "principle" to the status of a rule of law. In Tesic the Minister had referred to the privilege of remaining in Australia as a principle but in the statement of reasons applicable to Mr Sagoa the Minister did not refer to a principle relating to a privilege of remaining in Australia. Paragraph [8] of the statement of reasons in Mr Sagoa's case referred to the Minister's "consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been law abiding". At [39] the Minister expressed himself, under the heading "Expectations of the Australian Community", as mindful "of the principle that the Australian community would expect that non-citizens who commit serious crimes in Australia can and should have their visa cancelled". A reading of that paragraph, and of the statement of reasons as a whole, does not warrant the conclusion in this case that the Minister was elevating the community expectation to the level of a principle beyond a statement of government policy. 10 Ground 6 sought to challenge the Minister's decision on the basis that there was no police evidence before the Minister to justify the conclusion that Mr Sagoa had continued in criminal reoffending or had any pending charges. The statement of reasons, however, does not support that submission. The statement of reasons set out Mr Sagoa's lengthy criminal record and convictions for crimes. The Minister had specifically noted that Mr Sagoa had not reoffended since his release on parole but also noted that Mr Sagoa did not appear to be working towards rehabilitation. Mr Sagoa disputed some of the facts found and conclusions reached in the statement of reasons but the Court's role in judicial review proceedings is not to review the Minister's decision on its merits but to ensure that the decision was made lawfully. The material before the Court would not justify a conclusion that any of the facts found or conclusions reached by the Minister were not open on the material before the Minister such that the decision was necessarily vitiated by legal error. 11 The seventh ground was a complaint that the Minister had not defined the expectation of the Australian community. It is not clear what that ground was intended to convey but it may have been intended to be to the same effect as a submission considered by her Honour in Tesic at [90] when her Honour said: Mr Tesic submitted that the findings of the Minister so far as concerned the expectations of the Australian community were not reasonable or rational because the Minister did not define the nature of those expectations. Mr Tesic relied in this respect on comments of Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, where her Honour was critical of the lack of analysis in the Minister's reasoning. In this case, however, the Minister had provided Mr Sagoa with a copy of Direction 65 which set out the Minister's view of the community expectations. The statement of reasons also contained the Minister's considerations of the expectation of the community. Mr Sagoa also submitted in the additional material filed on 16 March 2017 that the Minister's decision was unreasonable stating: The Ministers decision was unreasonable in every aspect for a person who should be determining the best interest of a person rather then just relying on the negative feedbacks that has been provided to him. In accordance with well known and often cited authority the Ministers reason should be read as a whole and without an eye keenly attuned to detecting error. It is clear the Minister did turn his mind away from my rehabilitation back into the community and focused his decision on the protection of the Australian community without realising that I too am part of that community. I had a Subclass AH 101 child migrant visa (permanent resident) not a visa applicant but a visa holder who was entitled to live in Australia indefinitely and who has been brought up in the Australian way of life since the age of 14. I have practically spend over half of my life in Australia then the country of origin, Austtralia is my home. Your Honourable Justice Pagone I use to be a ashame about my past but now I acknowldge it openly when people ask me what has happened to me over the years. It was not my family's fault but my own doing that got me in trouble with the law. I humbly apologise to the Australian Community and my family and the victims of my crime for the disrespectful way I have acted in the past. I question myself your Honurable Justice Pagone isn't the law suppose to reveal the truth and oder equality amongst us and give us hope more importantly second chances so we know the differences between right from wrong. The Minister's decision to cancel Mr Sagoa's visa may be harsh and will have profound consequences for Mr Sagoa and for his family. Indeed, it seems that Mr Sagoa is now aware of those consequences, and the Minister's decision may not be one which all would make, but it cannot be said to be unreasonable in the legal sense: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. 12 At the hearing Mr Sagoa raised an additional ground that had not been made in any of the documents he had previously filed. The contention was, in short, that the Minister had failed to afford him with an invitation to make representations for a different revocation of his visa. Mr Sagoa's submission to this effect was made orally but was read from a typed document which he handed to the Court and to counsel for the Minister. Mr Sagoa contended that his visa could not have been cancelled under s 501(2) on 12 August 2015 because it had already been cancelled on 23 December 2014 under s 501(3A) and that the Minister had therefore been compelled to give Mr Sagoa an opportunity to make representations for possible revocation under the provision which had previously operated to cancel his visa before 12 August 2015. 13 It is sufficient to dispose of this submission to note that s 501(3A) could not apply to Mr Sagoa because he had been released on parole in April 2014 and, therefore, that a condition necessary to its operation was absent in Mr Sagoa's case. Section 501(3A) was introduced with effect from 11 December 2014 and provides: (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. The condition in s 501(3A)(b) for the operation of s 501(3A) was absent in Mr Sagoa's case because he was on parole and, therefore, the ground raised for the first time at the hearing of the application for an extension of time cannot succeed. 14 Accordingly, the application to extend time within which to make the application will be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 24 April 2017