FEDERAL COURT OF AUSTRALIA DLJ18 v Minister for Home Affairs [2019] FCA 895 Appeal from: Application for Extension of Time: DLJ18 v Minister for Home Affairs [2018] FCA 1650 File number: NSD 2395 of 2018 Judge: FLICK J Date of judgment: 13 June 2019 Catchwords: PRACTICE AND PROCEDURE – application for extension of time in which to appeal – extension required is short – leave to rely on new proposed ground of appeal refused – extension of time granted MIGRATION – refusal by Minister to set aside cancellation of visa – whether Minister required to take into account consequences to applicant of being prevented from returning to Australia – consequences in any event taken into account Legislation: Migration Act 1958 (Cth) ss 501, 501CA Migration Regulations 1994 (Cth) Sch 5, cl 5001 Cases cited: DLJ18 v Minister for Home Affairs [2018] FCA 1650 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 NBMB v Minister for Immigration and Citizenship [2008] FCA 149 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, (2014) 220 FCR 1 Parker v R [2002] FCAFC 133 Tanielu v Minister for Immigration and Border Protection [2014] FCA 1221, (2014) 226 FCR 154 Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177, (2016) 246 FCR 146 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, (2004) 238 FCR 588 Date of hearing: 24 May 2019 Date of last submissions: 3 June 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Mr S Tully Solicitor for the Applicant: Jeans Lawyers Counsel for the Respondent: Mr C Lenehan Solicitor for the Respondent: Sparke Helmore ORDERS NSD 2395 of 2018 BETWEEN: DLJ18 Applicant AND: MINISTER FOR HOME AFFAIRS Respondent JUDGE: FLICK J DATE OF ORDER: 13 JUNE 2019 THE COURT ORDERS THAT: 1. An extension of time within which to file a Notice of Appeal is granted confined to Ground 5 as set forth in the Further Amended Draft Notice of Appeal. 2. Subject to Order 1, a Notice of Appeal giving effect to these reasons is to be filed within seven days. 3. The Applicant's costs of his Application for an Extension of Time are to be his costs in the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK J: 1 The Applicant in the present proceeding, identified by the pseudonym DLJ18, is a citizen of China. He has a wife and three children, all of whom are Australian citizens. The nature of the Applicant's arrival in Australia has been variously described. In 2006, the Applicant, in an interview with the Department, apparently claimed he arrived in Australia as a stowaway on a ship in August/September 2004. In 2008, in the course of applying for a Protection visa, the Applicant claimed to have arrived in Australia by air in August 2003 using a fraudulent South Korean passport. Whatever be the circumstances of his arrival, the Applicant lived in Australia for a number of years before applying for, and being granted, a Protection visa in 2008. 2 In May 2016, however, the Applicant's visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the "Migration Act"). In May 2016, he made representations seeking revocation of the mandatory cancellation decision in accordance with an invitation to do so, as required by s 501CA(4)(a). In May 2018, the Minister declined to set aside the decision to cancel the visa. 3 The decision of the Minister was then the subject of challenge in this Court. On 6 November 2018, a Judge of this Court dismissed the application for judicial review: DLJ18 v Minister for Home Affairs [2018] FCA 1650. 4 On 24 December 2018, an Application for an Extension of Time to appeal from the decision of the primary Judge was filed. An Amended Application for an Extension of Time was filed in January 2019, along with an Amended Draft Notice of Appeal and a supporting affidavit. The extension of time required is a period of approximately one month. A Further Amended Draft Notice of Appeal was provided on the morning of the hearing on 24 May 2019. 5 If an extension of time were to be granted, the proposed Grounds of Appeal in the Further Amended Draft Notice of Appeal were confined (in summary form) to two Grounds, namely that the primary Judge erred: in not concluding that the Minister committed jurisdictional error by failing to give genuine, proper and realistic consideration to the Applicant's case, particularly as pertaining to the best interests of the Applicant's children (Ground 4); and in following the decision in Tanielu v Minister for Immigration and Border Protection [2014] FCA 1221, (2014) 226 FCR 154 ("Tanielu") rather than applying NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, (2014) 220 FCR 1 ("NBMZ") (Ground 5). 6 It was common ground that the principles to be applied when considering the present application for an extension of time were those set forth by the Full Court in Parker v R [2002] FCAFC 133 at [6], that paragraph incorporating those principles previously set forth by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 to 349. Of relevance to the exercise of the discretion are such considerations as (for example) the extent of the time for which an extension is required, the reasons for not appealing within time and the merits of the arguments proposed to be advanced. 7 It is concluded that the application for an extension of time should be granted, but only so as to permit the proposed Ground 5 to proceed to hearing. The reason for the delay 8 The reasons for not appealing the decision of the primary Judge were, with respect, far from compelling. The affidavit in support of the application sworn by the Applicant's solicitor, however, frankly set forth those reasons as follows: [3] The Appellant is detained at the Yongah Hill Immigration Detention Centre in Perth. [4] After the judgment was handed down on 6 November 2018, the Appellant asked his then solicitor as to whether he can appeal to the Full Federal Court. He was advised that he can appeal but there was little chance to win. [5] The Appellant did some research and in mid-December 2018, found a case which was successful on appeal and was similar to the facts in the Appellant's case. He identified the barrister as Mr Stephen Tully and the case as Minister for Immigration and Border Protection v DRP17, 26 November 2018. NSD742/2018. [6] The Appellant believed that he may be able to win his case, so decided to appeal the judgment of Thawley J, as he also wanted to stay in Australia with his wife and children. 9 The delay, accordingly, was thus occasioned by the present Applicant not accepting the advice of his former solicitor and undertaking his own pursuit of the authorities with a view to identifying a possible means of challenge. There was, at least, some explanation for the delay. 10 In circumstances where the extension of time is comparatively short, the resolution of the present application (it is respectfully considered) should not turn upon a failure to commence a proceeding within time but should turn upon whether the argument now sought to be pursued has some merit and whether the argument sought to be raised should be resolved by a Full Court. Proposed Ground 4 – A failure to give genuine, proper & realistic consideration 11 The starting point for the proposed Ground 4, that the primary Judge erred in not concluding that the Minister had committed jurisdictional error by reason of failing to give genuine, proper and realistic consideration to the Applicant's case, is the following passage from the statement of reasons provided by the Minister, namely: [19] Overall, I find that it is in the best interest of Jessica, Salem and Leona that I revoke the original decision to cancel Mr SMITH's visa, so that they may maintain and continue to develop their relationships with him and so that he may provide financial support for them. The submission being advanced to the Minister was a submission directed to the best interests of the Applicant's three children, namely Jessica (then aged 11), Salem (then aged 9) and Leona (then aged 7). 12 The germ of the argument is the identification of the person whose visa was cancelled as being "Mr Smith". 13 The difficulty with this proposed Ground of Appeal is at least twofold, namely it is not an argument which: was previously advanced for consideration before the primary Judge, in proceedings when the Applicant was legally represented; and has any self-evident merit. 14 As to the former consideration, an argument not previously relied upon may nevertheless be raised on appeal if it is in the interests of the proper administration of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46], (2004) 238 FCR 588 at 598 per Kiefel, Weinberg and Stone JJ. In circumstances, however, where a party was legally represented before the primary Judge, it is generally not a sufficient reason to grant leave to permit a new argument to be advanced on appeal simply because different legal representatives have discerned a new and different argument: cf. NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [33] per Flick J. 15 No adequate explanation has been provided as to why the present argument was not previously advanced for consideration before the primary Judge. 16 As to the latter reason, in circumstances where the Minister's reasons correctly identify the names of each of the children whose interests were being advanced for consideration, the apparently mistaken reference to "Mr Smith" is perhaps no more than a typographical error. In addition to the correct identification of each of the three children in para [19] itself, the Minister's reasons further correctly identify the children at paras [14] and [65]. 17 The absence of prejudice to either party where a new argument is sought to be advanced on appeal is not to be translated into a generally expressed proposition that it is in the interests of the administration of justice to entertain that argument where it has no self-evident merit. 18 No matter how seductively the Applicant sought to develop this submission, including submissions as to inferences to be drawn from the failure on the part of the Minister or others to give evidence as to how the error in para [19] of the Minister's reasons came about, at the end of the day the error was no more than a typographical error. It should not have occurred – but it did. However the error may have occurred, it was not prejudicial to a proper consideration being given to the interests of the three children. No inference can be drawn that the Minister failed to give genuine, proper and realistic consideration to the best interests of the three children or that the Minister failed to exercise his jurisdiction by failing to properly consider the Applicant's case. Although the decision-making in the present case was correctly characterised by Counsel on behalf of the Applicant as the "highest level of decision-making" and decision-making having very immediate and personal consequences to the Applicant, the error in paragraph [19] rose no higher than a non-prejudicial error. Proposed ground 5 – Error by reason of following Tanielu & an inability to return 19 The other proposed Ground of Appeal does not raise the same difficulties as the former Ground. This proposed Ground, it is accepted on behalf of the Respondent Minister, arises out of the primary Judge's rejection of a like Ground previously relied upon. 20 If an extension of time within which to appeal were to be granted, proposed Ground 5 is drafted as follows (without alteration): The learned Federal Court Judge erred in His Honour's consideration of Ground 2 of the amended application dated 1 November 2018. PARTICULARS (a) The learned Federal Court Judge erred by following Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154 because the "practical reality" of an applicant's circumstances was not a basis for distinguishing the application of the general principle from NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 that failing to have regard to the legal consequences of a decision can constitute jurisdictional error: Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84]-[85]. (b) Furthermore or alternatively, the learned Federal Court Judge erred because the Appellant had in fact made certain representations which, when considered cumulatively, evidenced a representation that the Applicant would not be able to return to Australia which the Respondent had failed to consider. That proposed Ground is commendable in its simplicity. The question sought to be resolved by a Full Court by Ground 5(a) is whether the decision of the Full Court in NBMZ could be distinguished, as was done by a single Judge of this Court in Tanielu, and whether the primary Judge was himself in error in applying Tanielu in the present case. 21 In NBMZ [2014] FCAFC 38, (2014) 220 FCR 1, the visa claimant was subject to mandatory detention and removal from Australia. But there was no country to which he could be sent. The question was whether the Minister was required to consider that the legal consequence of his decision to refuse a visa that the claimant would be subject to indefinite detention. In concluding that the Minister had erred in not considering that legal consequence, Allsop CJ and Katzmann J concluded: [9] The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal. [10] The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia's obligation of non-refoulement and the terms of the Act. Justice Buchanan published separate reasons for decision, with which Allsop CJ and Katzmann J also agreed. 22 In Tanielu [2014] FCA 1221, (2014) 226 FCR 154 it was argued that the Minister had failed to take into account that the legal consequence of his decision would be that the visa claimant could never return to Australia. In summarising this argument, Jessup J observed (at 161): [25] … the applicant contends that the Minister failed to have regard to the circumstance that, under the "special return criteria" in Sch 5 to the Migration Regulations 1994 (Cth), a legal consequence of the Minister's decision was that the applicant "could never be granted a visa to return to Australia". That the decision did carry such a consequence was accepted by the Minister. It was submitted in response to the applicant, however, first, that this was not a matter which was required to be taken into account in the Peko-Wallsend sense, and secondly, that the Minister did proceed by reference to the assumption, silent though it may have been, that the decision which he was about to make would have permanent consequences for the applicant. His Honour then referred to the decision in NBMZ and continued: [26] … The present case is, however, a far cry from NBMZ. It was not there held that each and every consequence of a decision under s 501 had to be placed on the scales for the contribution it might potentially make to the exercise of the Minister's discretion. The case was concerned with a very specific situation, one which involved Australia's obligations under the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, specifically its non-refoulement obligations. As I read their Honours' reasons, it was critical that the direct and immediate practical consequence of the Minister's decision under s 501 was that the person concerned would be in indefinite detention. [27] By contrast, the consequence upon which the applicant relies in the present case would be a practical reality only if he sought to return to Australia from New Zealand, the country of his nationality. That the immediate consequence of the Minister's decision would be the determination of the applicant's right to remain in Australia did, of course, require no elaboration. So too did the Minister take into account, in terms, the fact that his decision would make the applicant "subject to immigration detention". The applicant does not, and cannot, complain about the Minister's failure to take these consequences into account. The "consequences" to which he does refer would, therefore, become relevant when he, as a national of New Zealand residing there some time in the future, decided to apply again for a visa to enter Australia. To the extent that this might be regarded as a "consequence" of the Minister's decision, it does not have the legal proximity or the practical immediacy to that decision to justify the conclusion that, as a matter of law, the decision could not have been validly made without a consideration of it. 23 The decisions of the Full Court in NBMZ and that of Jessup J in Tanielu came before a subsequent Full Court in Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177, (2016) 246 FCR 146. An attempt on the part of the Minister to confine NBMZ to the necessity to consider "a particular and non-obvious legal operation of the Migration Act" was there rejected. In doing so, Kenny, Flick and Griffiths JJ concluded (at 168): [84] The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision. … [85] In written submissions, the Minister contended that NBMZ was distinguishable on the ground that, in referring to "statutory" or "legal" consequences, Allsop CJ and Katzmann J were referring to a particular and non-obvious legal operation of the Migration Act, which was "important in human terms". This submission is rejected. As already indicated, NBMZ stands for a broader proposition that is applicable in this case. The fact that the legal consequences of a decision may be obvious or that "the applicable legal framework to s 501(3) may be less complex than that considered in NBMZ" (Roach at [108]) may bear on the question whether the Minister has in fact misconceived the power in question or failed to have regard to the statutory framework in which the decision has been made. The principle for which NBMZ stands does not, however, cease to apply in these circumstances and they do not provide a basis to distinguish NBMZ from the present case. 24 The primary Judge in the present proceeding correctly observed that the issue before his Honour was "materially similar" to the one before Jessup J: [2018] FCA 1650 at [44]. His Honour further noted the submission by the Applicant that Tanielu should not be followed (at para [46]) and inferred that the Minister in the present case had not taken into account "that a consequence of the decision was that, once removed, the applicant would be prevented from returning to Australia by operation of the 'special return criterion' under cl 5001(c) of Sch 5 to the Regulations if the applicant were later to make an application for a visa": [2018] FCA 1650 at [53]. The primary Judge then continued: [54] As noted above, it is well-settled that a decision-maker is only bound to have regard to matters that are required to be taken into account, either expressly or by necessary implication, in relation to the exercise of the power or discretion in question: Peko-Wallsend at 39–40. The statutory scheme imposes no express obligation on the Minister to consider the consequences for the applicant flowing from the operation of the "special return criterion" under cl 5001(c) of Sch 5 to the Regulations. The issue is whether it was an implied mandatory relevant consideration. [55] The first step in determining whether a particular matter is an implied mandatory consideration for the purpose of s 501CA(4) is to examine the subject matter, scope and purpose of the statutory scheme. [56] The second step is to consider whether the consequence is a "direct and immediate" statutorily prescribed consequence which must be taken into account: Taulahi at [84] (set out at [48] above). The consequence must be one which is a consideration required to be taken into account as a matter of inference from the subject matter, scope and purpose of the Act: … [58] In NBMZ, the consequence that the appellant would be held in indefinite detention was one which the Full Court considered was a mandatory consideration for the purposes of s 501(1). [59] In Tanielu, Jessup J considered that the consequence that the applicant could never be granted a visa to return to Australia was not a mandatory consideration for the purposes of s 501(3). It was not suggested that his Honour's decision could be distinguished on the basis that the decision in the present case was not a decision to cancel a visa made under s 501(3) but rather a decision not to revoke a cancellation under s 501CA(4). [60] I am not satisfied that his Honour's decision is clearly wrong and should not be followed. It was within this context that his Honour also observed that: [63] Another relevant matter, in terms of whether it is to inferred from the statute and its object and purpose, that a particular legal consequence is a mandatory consideration, is the fact that the statutory scheme requires the Minister to invite an applicant to make representations about revocation: s 501CA(3)(b). If the applicant makes representations, the representations taken as a whole are a mandatory relevant consideration: … [64] In the present case, the applicant's representations stated that, if the applicant was sent back to China, he might never see his wife and children again and that he would "lose" them. The Minister took those representations into account… [65] Whilst the Minister did not refer to the "special return criteria" in Sch 5 to the Regulations or the legal impediment it created, it is tolerably clear, as a practical matter, that the Minister took into account that the applicant would not, or was highly unlikely to, be able to return to Australia. It is implicit in the paragraphs set out above, read with the Minister's reasoning as a whole, that the Minister was approaching the matter on that basis. That is an unsurprising approach given the nature of the applicant's offending (violent crimes of a sexual nature, perpetrated with a knife) and the fact that he was to be removed from Australia as a consequence. This is to be distinguished from NBMZ where the Minister failed to appreciate or consider the practical result of the legal consequences of the Act, namely indefinite detention. (citations omitted) The approach of the primary Judge was thus to accept that the Minister had failed to refer to the legal operation of cl 5001(c) of Sch 5 of the Migration Regulations 1994 (Cth) as operating to prevent the Applicant from re-entering Australia but had taken into account as a "practical matter" that the Applicant "would not, or was highly unlikely to, be able to return to Australia". Clause 5001(c) of Sch 5 operated as a legal prohibition which was not taken into account by the Minister; what was taken into account was the likelihood of the Applicant returning as a "practical matter". The legal impediment would remain; the "practical" impediment may change by reason of the factual circumstances confronting the Applicant, circumstances which may change with time. 25 It is unnecessary for present purposes to express any concluded view as to whether or not these conclusions of the primary Judge were correct. It is respectfully considered that it is sufficient for present purposes to conclude that the question posed by proposed Ground 5 is a question which is appropriate to be resolved by a Full Court. The present Applicant in his written Outline of Submission submitted (in part) that: [27] The applicant submits that Thawley J erred by following Tanielu (Judgment, [60]). The principle from NBMZ does not require consideration of a "legal proximity" or "practical immediacy" of the consequences of a decision. It does not cease to apply depending on the circumstances (Taulahi at [85]). Nor does NBMZ require that a consequence brought about by the special return criteria have to be a "practical reality" if the applicant sought to return to Australia (Judgment, [61]). The cases referred to by Thawley J (Judgment at [49]) do not indicate that such factors must be considered. It is sufficient if the consequence is a "direct and immediate" statutorily prescribed consequence (Taulahi at [84]). [28] Furthermore, Thawley J erred (at Judgment, [63]) because the principle in NBMZ does not state that the representations made by an applicant about revocation are relevant to the legal consequences of a decision. It may be accepted that representations as a whole are a mandatory relevant consideration. However, the particular legal consequences attached to a decision are discernible from the statutory framework and arise irrespective of the specific representations made by an Applicant. Those are, with respect, arguments appropriate to be resolved by a Full Bench. Whether consideration by the Minister as to the "practical" impediment confronting the Applicant should he wish to return to Australia was any answer to the "legal impediment" in his path in returning, is a matter appropriate to be resolved by a Full Court. 26 Although an extension of time could be confined to proposed Ground 5(a), the extension of time to be granted is in respect to the Ground as a whole. It may unnecessarily confine the consideration of the issues raised by proposed Ground 5(a) if the Applicant were not at liberty to make submissions with respect to the representations in fact made. CONCLUSIONS 27 It is unnecessary to express any concluded view as to the correctness of the decision of the primary Judge. It is sufficient for present purposes to only express a view that the argument sought to be advanced on appeal is one which is appropriate to be resolved by a Full Court. Although the reasons why an appeal was not lodged within time may be open to question, an explanation for the delay in seeking to appeal is the subject of at least some explanation. The delay should not preclude the questions surrounding the present proposed Ground 5 being pursued before a Court constituted by three Judges. The distinction sought to be drawn by Jessup J in Tanielu is one which has an ongoing importance to the manner in which like cases are resolved. 28 An extension of time within which to appeal should thus be granted, albeit an extension of time confined to the ability to raise the subject matter of the presently proposed Ground 5. 29 The costs of the Applicant should be his costs in the appeal. THE ORDERS OF THE COURT ARE: 1. An extension of time within which to file a Notice of Appeal is granted confined to Ground 5 as set forth in the Further Amended Draft Notice of Appeal. 2. Subject to Order 1, a Notice of Appeal giving effect to these reasons is to be filed within seven days. 3. The Applicant's costs of his Application for an Extension of Time are to be his costs in the appeal. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 13 June 2019