Federal Court of Australia Mitchell v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 526 File number(s): VID 574 of 2023 Judgment of: HESPE J Date of judgment: 20 May 2024 Catchwords: MIGRATION – application for extension of time – application for judicial review of decision of the Minister made under s 501CA(4) of the Migration Act 1958 (Cth) to refuse to revoke the cancellation of the Applicant's visa (the Decision) – whether the Decision was affected by jurisdictional error – whether the Applicant was denied procedural fairness – whether the Minister had a probative basis for finding that the Applicant posed a risk of reoffending in a similar fashion – whether the Minister failed to consider representations by the Applicant relating to his ties to Australia Legislation: Migration Act 1958 (Cth) ss 477A, 501, 501CA Cases cited: CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 Commissioner for Revenue (ACT) v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 MZARV v Minister for Home Affairs [2018] FCA 809 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 37 Date of hearing: 8 May 2024 Counsel for the Applicant Mr C Fitzgerald and Mr N Boyd-Caine (Pro bono) Solicitors for the Applicant Zarifi Lawyers Counsel for the First Respondent Mr G Johnson Solicitors for the First Respondent Spark Helmore ORDERS VID 574 of 2023 BETWEEN: PETER MITCHELL Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent order made by: HESPE J DATE OF ORDER: 20 May 2024 THE COURT ORDERS THAT: 1. The Applicant's application for an extension of time is granted. 2. A writ of certiorari issue to quash the decision of the Respondent dated 20 April 2020. 3. A writ of mandamus issue, remitting the matter to the Respondent to determine the matter according to law. 4. The Respondent pay the Applicant's costs, to be taxed if not agreed. 5. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT HESPE J: 1 The Applicant seeks an extension of time to bring an application for judicial review of a decision of the Respondent (Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (Act) to refuse to revoke the cancellation of the Applicant's visa. 2 There are two issues before the Court: (1) Whether an extension of time ought to be granted; (2) If an extension of time ought to be granted, whether the application for review ought to be allowed. 3 The Applicant is a citizen of the United Kingdom, who arrived in Australia on 8 December 1981, when he was five years old. On 14 May 2019, the Applicant's Return (Residence) (Class BB) visa was cancelled under s 501(3A) of the Act following his conviction in the Supreme Court of Victoria for the offence of manslaughter for which the Applicant was sentenced to 10 years' imprisonment. 4 On 20 April 2020, the Minister made a decision not to exercise his power under s 501CA(4) of the Act to revoke the cancellation of the Applicant's visa (the Decision). On 26 July 2023, the Applicant filed an application with the Court seeking an extension of time in which to lodge an application for review of the Decision together with a draft originating application for review of the Decision. 5 The test to be applied in considering an application for an extension of time is relevantly set out in s 477A(2) of the Act which is in the following terms: (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. 6 It was not disputed that the Applicant had made an application that in form satisfied s 477A(2)(a) of the Act. The issue before the Court is whether the Court is satisfied that it is necessary in the interests of the administration of justice to make an order granting an extension of time. 7 In considering whether the grant of an extension of time is in the interests of the administration of justice in this context, the Court is generally guided by the following factors: (1) the length of, and explanation for, the delay; (2) any prejudice that the respondent might have suffered due to delay; (3) the prospects of the case succeeding if an extension were granted; and (4) the consequences for the applicant should his application for an extension of time not be granted (see MZARV v Minister for Home Affairs [2018] FCA 809 at [13]). 8 There is unquestionably a significant delay in this case. The Applicant provided an explanation for this delay by his affidavit of 25 July 2023. The Respondent did not seek to cross-examine the Applicant in relation to the matters to which he deposed. 9 The explanation given by the Applicant in his affidavit for his long delay is essentially that the Applicant suffers significant mental health difficulties and therefore relies upon others to read documents and explain to him what the documents mean. Upon receiving the notice of the Decision, the Applicant relied on advice given to him by a prison officer that he should apply to the Administrative Appeals Tribunal (AAT) for review of the Decision. He deposes that he did so. The Applicant deposes that it was only shortly before, or once he was released from, prison that he became aware of the fact that the proper place in which he could pursue his application for judicial review was the Federal Court, rather than the AAT. The Applicant received legal assistance following his receipt of a notice of removal from Australia on 12 June 2023. 10 The explanation for the delay is not entirely satisfactory but its sufficiency needs to be assessed in context. The Minister concedes that he suffers no prejudice due to the delay and the consequences to the Applicant if an extension were not granted are significant if the grounds of review have merit. It is thus to the merit of the grounds and the prospect of their success to which attention is now turned. 11 At the hearing, the Applicant relied upon three grounds: (1) The Decision was affected by jurisdictional error as the Applicant was denied procedural fairness because the Applicant did not receive a copy of information that was adverse to him and upon which the Minister relied in making the Decision. (2) The Minister fell into jurisdictional error by failing to lawfully consider or engage with sentencing remarks of 9 February 2015 and/or alternatively in making a finding about the Applicant's risk of reoffending that was unsupported by the evidence. (3) The Minister fell into jurisdictional error by failing to lawfully consider or engage with representations made in support of the Applicant's request for revocation, being representations to the effect that he had lived in Australia for 36 years and that all of his family resided here. Ground 1 – DeNIAL OF Procedural Fairness 12 It was not disputed that the obligation to accord the Applicant procedural fairness was a condition of the power of the Minister to make a decision as to whether to revoke the original decision cancelling the Applicant's visa. 13 The uncontested evidence was that from the time of lodging his request for revocation until the Decision was made, the Applicant was incarcerated at Hopkins Correctional Centre. On 11 September 2019, the Minister's Department attempted to send a letter, together with enclosed documents, to the Applicant by registered mail. Because it could not be demonstrated that the documents had been received by the Applicant, the Minister was content for the Court to proceed on the basis that the Applicant did not receive the letter or the enclosed documents. The documents included an Immigration Report dated 10 September 2019 and a file note dated 30 August 2019 from Corrections Victoria. 14 The reasons for the Decision record the following: 73. The Immigration Report dated 10 September 2019 from Corrections Victoria shows that during his incarceration, Mr MITCHELL was subject to 17 urine tests and tested negative for illicit substances. The report notes he tested positive to prescribed medication, including methadone and codeine. 74. The Immigration report states that Mr MITCHELL participated in Alcohol and Other Drug programs but failed to complete the AOD program which commenced on 5 July 2018 due to medical reasons. Mr MITCHELL has been assessed and recommended for participation in the U-Turn program (UTP). According to the File Note dated 30 August 2019 from Corrections Victoria, UTP is a 46 hour moderate intensity program that targets male and female offenders assessed as moderate or high risk of violent reoffending, and is designed to meet the needs of those who experience significant barriers to engagement in prison programs. Mr MITCHELL is currently on the waiting list for participation in this intervention. 75. The Immigration Report states that Mr MITCHELL's completion of educational units has been affected by prison transfers and the need to withdraw from enrolled units. His learning plan history does not identify many employment pathways other than working for his father in metal fabrication. Between 22 July 2013 and 20 February 2019, Mr MITCHELL participated in three language, literacy and numeracy assessments and two vocational counselling sessions. … 80. I have also taken into account that Mr MITCHELL's custodial conduct has been satisfactory and he has made efforts to address his substance abuse issues through treatment intervention. I have had regard to Mr MITCHELL's expressed commitment to comply with the methadone program in the community and to become a positive member of society. I consider Mr MITCHELL's familial support would assist his rehabilitation and re-integration into the community. 81. Notwithstanding, I have also had regard to the risk factors associated with Mr MITCHELL's risk of reoffending. I have taken into account that whilst Mr MITCHELL has complied with his medication regime and abstained from illicit drug use in prison, at sentence, the Judge stated he was less confident about Mr MITCHELL's ability to abstain from illicit drug use given his history. Further, I have some reservations regarding the extent of Mr MITCHELL's rehabilitation, which has not been yet been tested in the community, and his ability to abstain from illicit drug use outside the constraints of a supervised environment. 15 There was no dispute that the Minister had taken into account the Immigration Report and the file note from Corrections Victoria in making his decision. The Minister contends that the reasons disclose that that information was not taken into account in a manner that was adverse to the Applicant. The Minister contends that the reasons do no more than accurately reflect the content of the documents and the documents supported the Minister's (favourable) conclusion at [80] that the Applicant's custodial conduct has been satisfactory and he has made efforts to address his substance abuse issues through treatment intervention. 16 Procedural fairness requires an applicant be informed of the nature and content of adverse material (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32]; Commissioner for Revenue (ACT) v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590–1). 17 The content of the Immigration Report and file note is presented in the Decision in neutral terms and is not used to discredit the Applicant. The Minister's reasons record that: the Applicant had tested negative for any illicit substances and had participated in alcohol and drug programs, the Applicant had failed to complete one alcohol and drug problem for medical reasons and was on a waiting list for a U-Turn program. The Minister accepted in his reasons that the Applicant had participated in educational units and vocational counselling but had limited employment pathways. The Minister took into account that the Applicant's custodial conduct had been satisfactory, that the Applicant had made efforts to address his substance abuse issues through treatment intervention and had expressed commitment to becoming a positive member of society. The Minister also concluded that the Applicant had made a positive contribution to the Australian community through his employment and voluntary work (Minister's reasons [89]). 18 Although the basis for the Minister's reservations (at Minister's reasons [81]) regarding the extent of the Applicant's rehabilitation could have been made clearer in the Minister's reasons, on a fair reading of the reasons as a whole, the basis of those reservations is understood to be the fact that the extent of rehabilitation has not yet been tested in the community, and reservations about the Applicant's ability to abstain from illicit drug use outside the constraints of a supervised environment. Analysing the reasons as a whole, the Court is not satisfied that the Minister relied upon material adverse to the Applicant in a manner that was adverse to the Applicant. 19 Ground 1 of the originating application does not support the grant of an extension of time and does not support a conclusion that the Minister fell into jurisdictional error in making his decision. GROUND 2 – Future risk of reoffending 20 At its heart, this ground of review concerns the basis on which the Minister reached the conclusion that he was satisfied that there was a risk of the Applicant reoffending. 21 The Minister's conclusions in relation to risk to the Australian community were expressed in the following terms: 82. I consider Mr MITCHELL's crime of manslaughter is very serious and find the harm that would result if it were repeated would be so serious, that any risk of similar conduct in the future is unacceptable. 83. In light of these risk factors, I find that there is a risk that Mr MITCHELL will reoffend. 84. I consider that should Mr MITCHELL reoffend in a similar manner, it could result in physical/psychological harm or even death to members of the Australian community. 22 At paragraph [91] the Minister's reasons record: Further, I find that the Australian community could be exposed to significant harm should Mr MITCHELL reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr MITCHELL. 23 The Minister's conclusion concerning the risk of significant harm to the Australian community was thus based on a risk of the Applicant reoffending "in a similar fashion" or "in a similar manner" to the very serious, violent nature of the crime for which he was convicted and which resulted in the loss of another individual's life. 24 The Applicant submitted that in drawing this conclusion, the Minister fell into the kind of error identified in CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634, being that the Minister reached a conclusion without a probative basis. As there was no question that the conclusion was material to the Minister's decision, the error was submitted to be jurisdictional. 25 The following principles, derived from the Full Court's reasoning in CKL21, are relevant: (1) A finding that a person is a risk of committing a very serious offence (in this case, manslaughter or similar) is a significant finding that requires a probative basis: CKL21 at [72]. (2) A finding about the likely occurrence of a future event requires more than mere speculation. It must be based on a logical process of reasoning based on known facts: CKL21 at [74]. (3) A conclusion that a risk cannot be ruled out is an expression of conclusion that does not of itself logically establish the existence of a risk: CKL21 at [74]. (4) In assessing the likelihood of future events key facts include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have occurred to interrupt the cycle of regularity: CKL21 at [74]. (5) The fact that an applicant's conduct has not been tested in the community does not establish that the applicant is at risk of reoffending. It is a negative finding about what is not known or established (because the applicant has not been living in the community) rather than a predictor of future behaviour: CKL21 at [79]. 26 The Minister accepted in his reasons that the Applicant did not have a history of committing serious violent crimes aside from that for which he was convicted. The Minister's reasons record: 79. In considering the risk that Mr MITCHELL poses to the community through reoffending, I have considered the Judge's remarks that Mr MITCHELL has a limited criminal history for violence and concluded there was nothing in his criminal history that suggested he had any disposition to violence generally or that he is likely to repeat the behaviour he engaged in on 6 January 2013. Further, I note the Judge stated that Mr MITCHELL's admission, plea of guilty, profound remorse and limited prior convictions for violence give him confidence that he will not reoffend in any violent way in the future. 27 The Minister's reasons also noted the sentencing judge "was less confident" about the Applicant's "ability to steer clear of illegal drugs". 28 The Minister's assessment that there was a risk that the Applicant would reoffend was based on the "risk factors" identified in [81] of his reasons (extracted above at [14]). On a fair reading of the reasons of the Minister, his conclusion on the existence of a risk of reoffending was intertwined with his reservations about the Applicant's ability to abstain from illicit drug use once released. 29 The material before the Minister included the remarks of the sentencing judge about the prospects of the Applicant's rehabilitation. The sentencing judge's remarks included the following (emphasis added): …while he has an unsatisfactory work record in recent times and a long history of illicit drug abuse, I am nevertheless satisfied that Mr Mitchell has good prospects of rehabilitation. ….while it is unlikely he will be assisted in his rehabilitation through paid employment, Mr Mitchell's admissions, plea of guilty, profound remorse and limited prior convictions for violence, and especially his profound remorse, give me confidence that he will not reoffend in any violent way in the future. I am less confident about his ability to steer clear of illegal drugs. He has abused alcohol, cannabis, heroin and methamphetmines [sic] at various stages of his life. He has also had difficulties with buprenorphine. He has had some rehabilitative treatment in the past, but it does not appear to have been very successful. There is some suggestion Mr Mitchell was drug-affected at the time of the offending, but I am not satisfied that is so or that, if he was, it made any significant contribution to his offending. The only meaningful connection between illicit drug use and his offending about which I am satisfied is that all persons connected with the incident were involved in the drug world. Hopefully, he can stay away from that world upon his release. Given the length of the sentence that must be imposed, he will have plenty of time to do drug rehabilitation courses in prison or otherwise make attempts to rid himself of the desire or need for illicit drugs in order that his chances of reintegration into the community might be improved. 30 The difficulty in this case is that, unlike many others, the evidence before the Minister was that there was very little meaningful connection between the Applicant's illicit drug use and his violent offending. This is not a case in which the supporting material demonstrated that a risk of future illicit drug use might readily translate into a risk of future similar offending. Although the Minister was not bound by the remarks of the sentencing judge, there is no material supporting the Minister's course of reasoning (for example a psychiatric or forensic psychologist report). 31 During the hearing Counsel for the Minister (quite appropriately) did not seek to support the Minister's conclusion by reference to the fact that the Applicant had been recommended for participation in the U-Turn program. Rather, Counsel for the Minister sought to support the Minister's conclusions by drawing a connection between the potential for future illicit drug use and the potential for the Applicant to reconnect with negative peers from the drug world. The difficulty with that reasoning is that it appears to reconstruct a different process of reasoning. This Court cannot rework the apparent basis on which the decision has been made: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [29]. 32 Ground 2 supports the grant of an extension of time. It was not disputed that if an extension of time were to be granted on the basis of the merits of the ground, the Court ought to also grant final relief. The application for final relief is to be allowed on the basis of ground 2. GrOUND 3 – failure to accord proper significance to ties to AUstralia 33 The Minister accepted in his reasons that the Applicant had lived in Australia for most of his life from a very young age and that, as a consequence, the Australian community may afford a higher tolerance of criminal conduct: Minister's reasons [17], [92]. The Minister took into account and recognised the Applicant's familial ties in Australia: Minister's reasons [23], [26]. 34 The Applicant nonetheless contended that the Minister "did not give any significance to or otherwise engage with that recognition in reasoning to the conclusion that he did". 35 The Court does not accept that the Minister failed to consider or engage with the representations made to him in relation to the Applicant's time in Australia and the fact that all of his family resided here. There was no failure by the Minister to consider or understand the representations made to him concerning the Applicant's ties to Australia. The weight to be accorded to that consideration was a matter for the Minister. It is not for this Court to undertake a review of the substantive merits of the Minister's decision: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [26]. 36 Ground 3 does not support the grant of an extension of time and does not support a conclusion that the Minister fell into jurisdictional error in making his decision. Conclusion 37 The Applicant's extension of time is granted. The Applicant's second ground of review is accepted. Writs of certiorari and mandamus are to issue. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe. Associate: Dated: 20 May 2024