FEDERAL COURT OF AUSTRALIA Sagoa v Minister for Immigration and Border Protection [2017] FCA 1044 File number: VID 862 of 2017 Judge: PAGONE J Date of judgment: 1 September 2017 Legislation: Migration Act 1958 (Cth), s 256, s 417 Cases cited: Sagoa v Minister for Immigration and Border Protection [2017] FCA 418 Date of hearing: 28 August 2017 Date of last submissions: 29 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 15 Counsel for the Applicant: The applicant appeared in person via video link to Christmas Island Counsel for the First Respondent: Mr T Goodwin Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent submits ORDERS VID 862 of 2017 BETWEEN: IMO SAGOA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ASSISTANT DIRECTOR FOR NSW MINISTERIAL INTERVENTION (MANJU RANI) Second Respondent JUDGE: PAGONE J DATE OF ORDER: 1 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PAGONE J: 1 On 28 August 2017 the Court heard an application by the Minister made orally on 16 August 2017 to dismiss an application which had been made by Mr Sagoa on 28 July 2017. In February 2017 Mr Sagoa had previously made an unsuccessful application for an extension of time within which to lodge an application to review a decision of the Minister which had been made on 12 August 2015 to cancel Mr Sagoa's visa. That application was dismissed on 24 April 2017. On 28 July 2017 Mr Sagoa made another application expressed as an application for extension of time to review the Minister's decision to cancel Mr Sagoa's visa. The new application made on 28 July 2017 was supported by an affidavit dated 27 July 2017 and was listed for directions on 16 August 2017. The Minister's application to dismiss Mr Sagoa's application was made orally at the directions hearing on 16 August 2017. 2 The Minister had not previously notified Mr Sagoa that an oral application would be made on 16 August 2017 to dismiss Mr Sagoa's application. Mr Sagoa is not legally trained, did not have legal representation and was in detention on Christmas Island. In the circumstances orders were made on 16 August 2017 listing the Minister's oral application for hearing on 28 August 2017. Mr Sagoa was also directed to file any amendment he proposed to make to his application and any materials in support of his application, and also to file any material in response to the Minister's oral application. The orders made on 16 August 2017 were as follows: 1 The applicant file any amendment to his application and any material in support of his application by 4.00pm on 24 August 2017. 2 The applicant file any material in response to the respondent's oral application for dismissal by 4.00pm on 24 August 2017. 3 The first respondent's oral application made on 16 August 2017 for dismissal of the application filed by the applicant on 28 July 2017 be listed at 10.00am on Monday, 28 August 2017 (by video link to Christmas Island Immigration Detention Centre). On 24 August 2017 Mr Sagoa sent by facsimile transmission to the Court's registry a new originating application for review of a migration decision, an application for extension of time and an affidavit. 3 The Minister maintained at the hearing on 28 August 2017 the previous oral application to dismiss Mr Sagoa's application and made oral submissions at the hearing on 28 August 2017 in support of the application. Mr Sagoa claimed on 28 August 2017 that he had not understood that there would be a hearing on that day of the application for dismissal of his application notwithstanding the terms of the orders which had been made on 16 August 2017. He also said that he wished to file submissions which he said that he would have filed if he had known that there would have been a hearing on 28 August 2017 of the Minister's application to dismiss the proceeding. The Minister had not been required to file or serve submissions in support of the application for dismissal which was to be heard on 28 August 2017 but in respect of which Mr Sagoa was given until 24 August 2017 to reformulate or to supplement as he elected to do on 24 August 2017. Mr Sagoa was on notice from 16 August 2017 that the Minister sought the dismissal of Mr Sagoa's new application for an extension of time and had been given an opportunity by the orders made on 16 August 2017 to reformulate his earlier application and to supplement it with additional material. Mr Sagoa did not, however, have the benefit of knowing until the hearing on 28 August 2017 the basis upon which the Minister submitted that Mr Sagoa's application, as reformulated and supplemented, should be dismissed. In those circumstances Mr Sagoa was invited to make oral submissions after hearing those by the Minister and was given leave to file written submissions by close of business on 29 August 2017 with the Minister having leave to file submissions strictly in reply by 2.00pm the following day. Mr Sagoa filed two short unsworn affidavits on 29 August 2017. 4 Mr Sagoa's originating application dated 24 August 2017 referred to the decision, which is the subject of his application, as a decision notified to him on 15 June 2017. Details of the relief sought in the originating application also referred to a decision having been made on 15 June 2017 but Mr Sagoa did not otherwise identify a decision notified on 15 June 2017 and no such decision was otherwise identified in the application for an extension of time or in the affidavits by Mr Sagoa filed in his application. The relevant decision made by the Minister, however, was the decision made on 12 August 2015 to cancel Mr Sagoa's Class AH Subclass 101 Child (Migrant) visa which had been the subject of his earlier application in Sagoa v Minister for Immigration and Border Protection [2017] FCA 418. It seems likely from the materials filed by Mr Sagoa in July and August 2017 that he may not adequately have appreciated the need to link his application with the decision made by the Minister to cancel Mr Sagoa's visa. Much of the material relied upon by Mr Sagoa in his application concerned matters relating to his conditions, circumstances and events after the Minister's decision to cancel his visa that did not bear legally, logically or probatively upon the decision to cancel Mr Sagoa's visa and which he would need to impugn. 5 The grounds relied upon by Mr Sagoa for his application for an extension of time were stated by him as follows: Grounds of application Procedural fairness/Jurisdictional error was absent in this matter before/after the applicant's visa was cancelled under s501(2) of the migration act 1958. The minister for immigration and border protection did not let the applicant know that the minister would personally cancel the applicant's visa. The applicant was not aware about his legal rights until sometime in detention. The applicant was in a mentally unstable environment due to losing his father a month before coming into detention and not being there for his sister who was in labour at the hospital for support and to provide financial support for his family in that time of need, realising the financial hardship that they would encounter trigged a mental illness. The disempowerment that comes from living in a chronic state of uncertainty is a major mental health issue for anyone in detention. Realising that the applicant was vulnerable not aware of his legal rights the case managers assigned to guide and assist him with options fully seized the moment. Even though it cannot be proved I ask your honour to have a look at the applicant's track record in filing applications since coming into custody. In particular as evidence as proof and being unrepresented as your honour has witnessed by his previous application. The case managers cornered the applicant and abused their statutory duty when he was completely oblivious of the situation he was in. The applicant was not aware at the time that he had a time limit but 15 months after due to being subjected in an environment that put him in a poor mental illness. I ask your honour if the applicant was truly aware of his legal rights without being betrayed by minister's delegates this application would have been made in time and his circumstances would be different. The applicant complied with the Ministers officers when they took him into custody, the applicant put his trust in those who he thought was there to help him and in return they made him believe that it was his only option. The applicant applied for a protection visa his claims was the truth. The applicant has not seen his father for over 16 years due to being told by the military not to ever return to Fiji. The applicant was out on parole he had every chance to leave Australia to be there for his father's funeral but knew that his life was in danger if he did return back to Fiji. The mental/psychologically effect it had on the applicant from keeping such secrets for years which was only exposed while in detention was not spoken to any other person before. The applicant suffered major mental issues in regards to his Father who he has not been in contact with since leaving Fiji 17 years ago. The applicant was truly lost with the passing of his late father and the thought that he was told by case managers that he would be deported triggered his way of thought. Also being present at the Christmas Island riots and being physically tortured was a breach of s256 migration act 1958 and in preparing the applicants case in a safe and secure facility. The events itself was a breach of Australia's signatory obligations it was truly inhumane but cannot be proved as the detention does not allow any information about it out to the public. I strongly ask your honour as unfortunate as it seems that the applicant being under such mental illness in a place where it is designed to break an individual mentally to allow him a fair go in finding representation to present the case to the court and his application be reviewed according to law in the interest of justice. Those matters were supplemented by an affidavit dated 24 August 2017 in which Mr Sagoa said: I am not prolonging my detention nor do I enjoy being kept in detention against my will. I am coming to the end of the line in utilizing all avenues. I ask of you, your honour to allow me to pursue it with caution. I am no lawyer, I do not have a lawyer, simply cannot afford a lawyer nor can the government afford a lawyer for me in the legal representation of the case at hand and applying for a pro bono is such a long process. Severely disadvantaged, restricted to limited resources, no legal representation I ask myself if there is light at the end of the tunnel or an oncoming train. The minister for immigration and border protection uses tax payer's money to pay for his legal cost where I am forced to explore an academic mind frame that am not used too but it is the only thing that is keeping me from insanity. The disempowerment that comes from living in a chronic state of uncertainty is a major mental health issue for anyone in detention. Mentally, psychologically challenged and pressured by the department of immigration to sign a paper that mentions that I agree to voluntary deportation is a constant reminder of the duty of care I am up against. Verbally threatened, persuasive use of authority, not complying will lead to involuntary deportation which always results in an unlawful physical act of manner that is utterly inhumane. Being a captive of the respondent who is also your case manager is not what you had in mind when you are seeking help in confined spaces. Withholding information and taking advantage of a vulnerable person in such circumstances is purely evil. Why the applicant is seeking an extension of time in making submission to the grounds set out in the amended application. Limited access to computers/Poor internet connection Each compound has 4 computers used by 55 to 60 detainees which is an absolute struggle itself to use and 2 computers that detainees are able to access at interviews area only by requesting it which may take up to 2-4days to be granted to the particular detainee. Once accepted detainees are only allowed l hour because it is shared with other compounds amongst 250 to 300 detainees. Due to the remoteness of Christmas Island the internet connection is not promising sometimes fast and slow and other times it just doesn't work which is completely frustrating for every detainee who is trying to get on top of things in preparing their cases. Access to Justice of Peace (JP) There is only one Justice of Peace individual who is qualified to witness affidavits and other legal documents that come in once a week. Any detainee that wishes to see one must fill in a request form a week before because there are over 300 detainees and the (JP) only has a specific number that they agree to see within that hour and if they miss out then they have to put in another request form as soon as possible. Another example would that a detainee has put in a request form but an appointment slip is not given to the detainee the day before the arrival of (JP) to the centre on the next day, it is extremely hard because if your name is not on that list than your out of luck so your repeating the same process again until your name is finally on that list. Legal Assistance The welfare workers are unable to help with any legal discussions in regards to the applicant's migration matter. The case managers that are assigned to detainees are minsters delegates with respect the only thing that they are concerned about is not in the applicant's best interests. Your honour I am completely struggling as it is at the moment being in a detention centre and not having legal representation is a constant battle. A pro bono legal service law firm offered me free consultation since my last appearance at court and have been in contact with them, they are looking into taking my case which would be great in the proceeding of this case to its full potential allowing me a fair go in court. I humbly ask your honour and in respect to the respondent if they don't mind, to grant the applicant a substantial amount of time due to my unfortunate circumstances to prepare my case in presenting bundles of relevant documents, submissions, list of authorities that is necessary for the court to consider all circumstances before making a just conclusion. The originating motion also set out grounds for his application which overlapped to some extent, and to varying degrees related to the grounds in the application for an extension of time and the supporting affidavit. The two unsworn affidavits filed by Mr Sagoa on 29 August 2017 provided little more in support of the application although in one of them Mr Sagoa requested an adjournment in the following terms: The applicant apologizes to his honour and the Court for any misunderstanding and inconvenience that the applicant may have caused in the proceeding related to this matter. The Facts The applicant is an indigenous Fijian from a low socio-economic background. In order to prepare these submissions the applicant has sought the assistance of a person who speaks English as a first language. The applicant has found the proceedings to be a daunting task and has expressed his inability to have the requisite skill set of knowledge and academic qualifications to deal with this matter. This inability to comply with the most basic procedural requirements is manifestly evident in the preparation of the applicant's documents. The applicant respectfully requests an adjournment of the matter until a date to be determined upon the applicant obtaining the relevant documents; Ministers statement of reason, the applicant's initial representation to the Minister, under a freedom of information (FOI) request. The opportunity to present the applicants initial representation to the court will be evidence of the applicant's ability to prepare and present a proper case and giving meaning to the Minister's decision in the matter. There was no other material relied upon by Mr Sagoa in support of the request for an adjournment and it is appropriate in the circumstances to consider it with the Minister's application for dismissal. 6 The Minister submitted that Mr Sagoa's application for an extension of time should be dismissed because the matters Mr Sagoa sought to raise in his new application ought to have been raised in the previous proceedings, because Mr Sagoa's explanations for delay were either irrelevant or unsatisfactory and because, in any event, the new grounds upon which Mr Sagoa sought to rely lacked sufficient merit to warrant the grant of an extension. Mr Sagoa's grounds for seeking to have set aside the Minister's decision to cancel his visa were set out in the originating application as follows: Grounds of application The Minister for Immigration and Border Protection committed legal error in procedural fairness jurisdictional before and after the applicants visa cancellation under s501 (2) of the Migration Act 1958. I. The error was that the applicant was not made aware the minister would personally cancel the applicants visa under s501(2) of the Migration Act 1958. II The applicant was not given natural justice specifically mentioning the minister would intervene. III. I was not given procedural fairness because I was notified that the Minister would make a personal decision rather than a delegate. IV. Knowing if the minster was going to a make decision the applicant would have approached the case differently. V. If I had known that I was denied merits review and believing that a delegate would make a decision for those reasons would not be in this situation where I am in now. The effect of these errors made by the Minister is a complete atrocity. I. Unfairness in limiting the applicants legal process II. The applicant was denied procedural fairness in a merits review that obviously would have been successful. III. The minster subjected the applicant in an environment where he has no form of legal assistance, legal representation, limited funds for legal aid to provide legal service to the applicant whom has also suffered physically, mentally while in custody where the minister has breached the duty of care mentioned in s256 of the Migration act 1958. IV. More importantly this act itself is illegal and unconstitutional the procedure itself taken when cancelling a visa under s501 is absolutely absurd. V. The constitution is the head of nationhood laws and it does not allow such act. VI. The minister did not have the power to subject a power that only a criminal court of law of appeal of Australia has jurisdiction of. VII. The minister and his delegates have been using their statutory obligation in corrupting the migration law system. VIII. Abundantly using tax payer's money to fund this unlawful act or terror. 1. Second Respondent in respect failed their statutory duty by law by not referring the applicant's request under section 417 Migration Act 1958 with respect it fell in fairly within the ministers guidelines on ministerial powers s351,s4l7, s501J more importantly in the public's interest. 2. Orders in details of relief sought the applicant orders an injunction restraining the First Respondent from deportation until the finalisation of this application and John Falzon S31/2017 that is being heard at the High Court which is going to determine a technical legal and Constitutional issue [that the framework for cancellation of a visa under s501(3) and revocation under s501 is unconstitutional]. The matter itself targets s501(3) of the Migration Act 1958 compared to the applicant visa where it was cancelled under s501(2) of the Migration Act 1958 in respect it will have less effect to the applicant unless the High Court rules the whole direction s501 as invalid. 3. The First Respondent denies the applicant Australia's non-foulement obligation·under the provision of the Migration Act 1958 failed to take into account its signatory obligation. 4. The First Respondent denied the applicant procedural fairness before and after the applicants visa cancellation under s501(2) of the Migration Act 1958. 5. The First Respondent failed to take into consideration the applicants country of origin was part of the Commonwealth, saying so the applicant is not an alien so the question is if s501(2) of the Migration Act 1958 (Cth) within the legislative powers of the Commonwealth to the extent that it authorised the First Respondent to cancel the applicants visa on 12 August 2015. 6. The applicant would like to challenge the Constitutional validity of s501 Migration Act, whether the government was legally constituted in relation to Barnaby Joyce situation in s44 of Constitution. 7. The First Respondent failed its statutory obligation under s256 Migration Act 1958. Decision under section 486D Migration Act 1958- Proceeding in relation to a tribunal decision For the purpose of the decision of the discloser required by section 486D of the Migration Act 1958 in relation to a tribunal decision (within the meaning of that section), the applicant states the applicant has brought the following judicial review proceedings (within the meaning of that section) in relation to the decision. It is possible to consider Mr Sagoa's application by reference to seven grounds. The Minster submitted that none had any prospect of success to justify granting an extension of time in which Mr Sagoa could make an application seeking to set aside the Minister's decision to cancel the visa. 7 A number of Mr Sagoa's grounds were to the effect that he had been denied procedural fairness by not having been made aware that the Minister would personally cancel the visa under s 501(2) of the Migration Act 1958 (Cth) ("the Act"): see, for example, grounds I-V in the grounds of application quoted above. Ground numbered 4 in Mr Sagoa's originating application repeated a claim of breach of procedural fairness but did not identify any breach or particular of breach. The notice given to Mr Sagoa of an intention to consider the cancellation of the visa, however, had put Mr Sagoa on notice that either the Minister or his delegate might cancel the visa. In those circumstances Mr Sagoa's claim of not having been made aware that the Minister would make the decision to cancel his visa has no prospect of success. Mr Sagoa had been invited by the notice to make submissions upon the basis that a decision by the Minister was one of the two options that might be taken and Mr Sagoa was given an opportunity to make submissions upon either basis. 8 Ground numbered 1 in Mr Sagoa's originating application claimed that there had been a failure of a duty to refer a request under s 417 of the Act. That section, however, enabled the Minister to substitute a more favourable decision for a decision by the Tribunal in a situation where the Administrative Appeals Tribunal had made an adverse decision to a visa applicant to refuse to grant a visa or to cancel a visa. That section could have no application in the circumstances of Mr Sagoa because the Minister had made a personal decision to cancel the visa and there was no decision by the Tribunal to be substituted by a more favourable decision by the Minister. Counsel for the Minister suggested that Mr Sagoa might have meant to refer to a different provision, rather than to s 417, which permits an application for ministerial intervention associated with a refusal of a protection visa, but that matter is not before the Court in relation to the application for an extension of time and cannot provide a basis upon which his application could succeed. 9 A third ground raised by Mr Sagoa concerns the constitutional challenge currently before the High Court in S31/2017 in which the constitutional validity of s 501(3A) is in issue. The outcome of that case, however, will have no bearing to Mr Sagoa for the reasons which had been given in the earlier proceedings for an extension of time: see Sagoa v Minister for Immigration and Border Protection [2017] FCA 418, [12]-[13]. 10 A fourth ground raised by Mr Sagoa concerns a claim that the Minister denied Mr Sagoa Australia's non-refoulement obligation under the provisions of the Act. That ground is not relevant to Mr Sagoa as a mandatory consideration for the Minister in regard to Mr Sagoa being returned to Fiji and, in any event, Mr Sagoa's application for a protection visa had been refused. 11 Ground numbered 5 in Mr Sagoa's originating application relied upon the fact that his country of origin was part of the Commonwealth. The proposition Mr Sagoa sought to make was that this circumstance somehow restricted the ability of parliament to enact s 501(2) of the Act. There is, however, no foundation to such a proposition. Mr Sagoa's visa was cancelled for a failure to meet the character test under the Act and the legislative power to enact a provision to that effect is not restricted by the circumstance that Fiji may be part of the Commonwealth. 12 A different challenge to s 501 of the Act was suggested by ground numbered 6 on the basis that some members of parliament may be found to have been ineligible to have been elected to parliament when s 501 was enacted in its relevant terms. However the ineligibility of a member of parliament to be elected does not impugn the validity of the legislation. Section 501(2) of the Act has been in operation for a number of years and there is no foundation to impugn its validity by reason of a subsequent finding that a person elected to parliament may have been ineligible. 13 Ground numbered 7 in Mr Sagoa's originating application referred to s 256 of the Act which relates to the obligations of the Department concerning the treatment of persons in detention. It may be accepted (as counsel for the Minister accepted, without conceding, for the purpose of argument) that Mr Sagoa's treatment in detention was in breach of s 256, but any such breach cannot bear upon the earlier decision to have cancelled his visa. 14 Accordingly, the application for an extension of time will be dismissed. The application by Mr Sagoa for an adjournment must also be rejected. He was on notice on 16 April 2017 that the Minister's application to dismiss Mr Sagoa's application would be heard on 28 August 2017. On that day he made an application for, and was denied, an adjournment but was given leave to file submissions in response to the Minister's application which was otherwise fully argued on that day on the materials which Mr Sagoa had filed on 24 August 2017. Nothing filed by Mr Sagoa on 29 August warranted granting an adjournment or otherwise delaying hearing and deciding the Minister's application. 15 Accordingly, Mr Sagoa's application will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 1 September 2017