Adjei, Sampson Kwaku v Minister for Immigration, Local Government & Ethnic Affairs

[1993] FCA 1062

106 2, 93

JUDGMENT No. ........ ..... ,..... .....

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 411 of 1993
GENERAL DIVISION

BETWEEN:  $AMPSON KWAKU ADJEI

Applicant

I AND : MINISTER FOR IMMIGRATION
LOCAL GOVERNMENT & ETHNIC
WFAIRS & ANOR

Respondent

' 5

29 June 1993

REASONS FOR JUDGMENT

LOCKHART J .

There are before the Court today two motions by the applicant. One is a motion seeking the Court's leave to extend time to the applicant to bring an application to the Court for an order of review under the Administrative Decisions Judicial Review Act 1977 ("the Judicial Review Act"). The decision in question was made on 18 November 1992, when the decision maker, a duly authorised delegate of the first respondent, the Minister for Immigration, Local Government and Ethnic Affairs, decided to affirm an earlier decision of an officer of the department to refuse what is described as a "spouse (after entry) permit" to the applicant.

which the Court must exercise its jurisdiction to consider the	application for extension of time is section 11(3)(b) (iii) of the
Judicial Review A c t . The application for the order of review was lodged with the Court on 25 June 1993, approximately six months after the making of the decision. It is plain that the decision is in fact out of time and that it is necessary that the application for extension be made. It follows that the prescribed period, for the purposes of S. 11 within which the application should have been made if it was made as of right, was the period commencing on the day on which the decision was made and ending on the 28th day after the day on which a document setting out the terms of the decision was furnished to the applicant.
There is some degree of conflict of evidence on the question of when such a document was furnished to the applicant. There is some material before me to suggest that the notice of the decision was in fact posted to the applicant at the address which he had given the department on or about 18 November 1992, in which case it is likely that he would have received it not too
was informed of the contents of the decision on 18 December, he long thereafter. But the applicant has sworn that, although he
did not receive a copy of it until 30 December 1992. I shall determine the matter on the footing that the applicant did not in fact have furnished to him a document setting out the terms of the decision until 30 December 1992. It follows that the 28 day period would then have expired on 27 January 1993.
Approximately five months then passed before the application to this Court was brought.
The principles governing the determination of applications for extension of time within which to bring applications for judicial review under the Judicial Review Act have been referred to in many cases. It is sufficient if I refer to the judgment of Wilcox J. in Hunter Valley Developments Pty Limited v Cohen (1984) 3 PCR 344. His Honour sought at pages 348 to 350 to
distil the principles that guide, though not in an exhaustive manner, the exercise of the Court's discretion when considering an application of this kind.
I need not refer to all the principles to which his Honour referred at those pages: it is sufficient for present purposes to say that the following matters are relevant in the exercise of the Court's discretion. The Court will not grant the application unless positively satisfied that it is proper so to do. The prescribed period of 28 days is not to be ignored. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-
applicant for extension show an acceptable explanation of the condition to the exercise of discretion in his favour that the
delay and that it is fair and equitable in the circumstances to extend time.
Action taken by the applicant other than by making an application for review under the Act is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who by non-curial means has continued to make the decision maker aware that he contests the finality of the decision and has not rested on his rights, and a case where the decision maker was allowed to believe that the matter was finally concluded.
Also, the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. I need not refer to the other principles to which his Honour adverted, but I have considered them all.
So far as the delay of approximately five months in bringing the application is concerned, the evidence is not entirely satisfactory, but I am satisfied that the applicant was not in fact positively aware that he had a right of review under the
Judicial Review Act of the kind which he has subsequently
exercised. It is not a case of an applicant who knows he has such a right and yet rests on his rights. He did indeed seek to
which his attention was referred in the material served upon him challenge the decision of 18 November by adopting the course to
on 30 December, namely that he was eligible to apply to the Immigration Review Tribunal for a further review, and an enclosed leaflet explained how the Immigration Review Tribunal operated. Notwithstanding the passage of time that has occurred and not withstanding my view that the evidence is not by any means entirely satisfactory as to why the applicant did not bring the application, I do not propose to take the course of holding that the passage of time is such as to shut him out from bringing this application.
I turn, however, to the more substantial question, namely as to the merits of the substantive application that has been made. In applications for extension of this kind, the merits of the application are relevant, though the degree of relevance will vary from case to case. This matter has a very long history to which I shall briefly refer in a moment and I must take that into account.
The case has taken most of today which certainly has not been in any way a final hearing of the application or an exhaustive review of all the points that are involved, but a fair degree of attention has been given in both the evidence and argument to the substantive matters raised in the application for the order of review.
I should add that the application as filed on 25 June is an application which is somewhat different from the application which was filed pursuant to the Court's leave this morning, the Amended Application for an Order of Review.
Before turning to those grounds on which the applicant bases his case, it is necessary to say something about the background of the matter and the salient facts. The applicant is a citizen of Ghana. He entered Australia on 8 August 1986. He was granted a valid temporary entry permit for a period of some six months which expired on 10 February 1987. On 2 January 1988 he lodged an application for resident status which was rejected on 3 May 1988. He then submitted further evidence in support of his application for resident status which was reconsidered by the department and rejected on 15 June 1988. On 12 June 1988 he lodged an application for refugee status which was rejected on 12 April 1990.
Then he lodged a further application, the details of which are not presently important and thereafter proceedings were set in train within the department to consider that application and other applications which he subsequently made.
The applicant was interviewed on a number of occasions, sometimes at considerable length in relation to his various applications. There have been some six applications on my count made by the applicant with respect to his migration status under
the Migration Act and regulations.
On 7 November 1990, the applicant was granted what is described as a "processing entry permit" valid until 8 November 1991 and he was granted further extensions to that permit, the last of which expired on 29 October 1992. He did not depart Australia on the expiration of that entry permit.
I shall simply state with respect to the six applications that have been made with the department (indeed there may even now be a seventh but nothing turns on that) the dates on which various applications have been lodged: the application of 27 January 1988 to which I have referred, which was refused on 3 May 1988; the application for refugee status which was refused in April 1990; a review of his refugee status lodged in February 1993 and refused in March 1993; and what is described as an EETEP lodged on 16 February 1990, approved on 29 April 1992 and granted valid until 29 October 1992 as I have mentioned earlier. A further application was lodged on 28 May 1992, refused on 2 October 1992 to which I have referred, and a review application was lodged with the Migration Internal Review Office on 27 October 1992 for review of the decision to refuse an entry permit for what is called "class 801 spouse after entry" and that application was refused and the earlier decision of the decision- maker to which I have already referred affirmed on 18 November 1992 which is the decision under attack in this proceeding.
It is the 18 November 1992 decision to which I turn. The decision maker is the second respondent to the amended application, a Mr Brett Ravine. I should add that in cases such as this, it is generally, I think, undesirable that the decision maker in these circumstances be joined as a party. The proper party is the Minister, but I mention that simply in passing for future guidance and not as a criticism of the fact that he was joined.
The decision affirming the earlier decision states a number of matters that were taken into account by the decision maker which he regarded as relevant to his decision. Particularly relevant was regulation 135 of the Migration Regulations which so far as material reads as follows:

It is agreed between the parties that if the application is
in fact out of time then the relevant statutory provision under

"(1) Subject to subregulation (2), the

additional criteria in relation to a spouse

(after entry) entry pennit are that:

(a) at the time when the application for the

entry permit is decided:

(i) the applicant is spouse of:

(A) an Australian citizen; or

(B) an Australian permanent

resident;

who

(C) nominated the applicant for the grant of the entry permit; and
(D) has a genuine and continuing marital relationship with the applicant; and

(ii)the applicant is the holder of a valid extended eligibility criterion for the grant of which (Spouse) entry permit, a was that the applicant was the

spouse of that Australian citizen
or Australian permanent resident; and
(iii)	the decision is not made earlier than 2 years after the day on which the application is made; I t
...

The reference to spouse in that regulation is a reference which includes a de facto spouse. The applicant claimed to the department that he had a relationship with a de facto spouse which was genuine and continuing at the date of his application. That assertion was taken into account by the decision maker. He mentioned all the matters which he appears to have taken into account, but I will deal with those which are critical.

He says that the application was initially rejected as the primary decision maker having examined all available material was satisfied that the applicant's marriage to the sponsor, that is the de facto spouse, was not genuine and continuing. Mr Ravine examined the material contained in the file and said that in making his determination he had particular regard to the material provided by the Compliance Section of the Department. On 10 November 1992 the applicant was visited by officers of the department at an address in Parramatta.

The applicant provided inter alia the following information. Namely, he was actually residing not with his de facto wife but with his first wife who is described in submissions as his customary wife, that is, his wife according to the customs of

Ghana. He provided a statutory declaration stating that he and	his customary wife had a baby boy. The date of birth of the baby
boy would certainly appear on the evidence to be consistent with the view that the applicant was in fact residing with his customary wife; although it would not necessarily exclude that he was also residing with his de facto wife.
The decision maker said that on the basis of the available evidence he was satisfied that the applicant was not in a genuine and continuing de facto relationship at the date of the decision maker's decision, which of course is the relevant date. He said that given the available material, on the balance of probabilities the applicant was not ever in a genuine and continuing relationship with his de facto wife who was his sponsor for the purposes of his application under the Migration Act.
The applicant, therefore, in the decision maker's view failed to satisfy a legal requirement for the grant of the entry permit applied for as he failed to satisfy Reg 126. The decision maker also considered whether or not the applicant should be invited to lodge another application for an entry permit of the relevant class, or any other class, and was satisfied that there were no reasonable grounds for inviting that application. The decision maker then having considered the material affirmed the decision to refuse a "spouse after entry permit" to the applicant and he took that course and affirmed the decision. This is, as
I said, the decision under review.
The grounds of attack are set out in the amended application which is a fairly extensive document covering some 12 pages and it sets out in some detail the various grounds on which the decision is challenged, the grounds echoing the various provisions of the relevant sections of the J u d i c i a l Rev iew Act. Particulars are also supplied with respect to those grounds. There is a large degree of overlap between the various grounds and the particulars in support of them, however, I do not propose to go through each of the grounds and particulars in detail that
are referred to in the application; they have been fully canvassed in the argument of which I have taken account.
One of the matters relied on to attack the decision is that it is said that there was a denial of natural justice to the applicant because he was not fully advised of the details of a certain allegation made by what is said to be an anonymous telephone call on 11 May 1992. That was a call from the de facto wife of the applicant stating that they were no longer together nor had they been so for the past six months, that is, it seems, prior to 11 May 1992, stating that the applicant was harassing her constantly since separation and she would send a letter verifying what she said together with certain supporting statements.
The truth or otherwise of that statement is not, of course, an issue before the Court. The Court is concerned with whether
the correctness in law of the relevant decision of 18 November or not a ground in law has been established to cast doubt about
1992. However, it is plain from the evidence that I have heard that the applicant was informed of the details of the allegation made by the telephone caller and that he had an opportunity to state his case before the decision maker in respect to it.
I have carefully considered all the points that have been put to me, but I am not of course hearing the matter on a final basis at all. I am approaching the matter on the footing that I must be satisfied before acceding to the application for extension of time that there is some reasonable prospect of success for the applicant in pursuing at least one of the substantial grounds of his application for review. I have carefully read the evidence and listened to the oral evidence of the applicant himself.
I have listened carefully to the argument that has been put on his behalf by his counsel and by counsel for the Minister and taking as I do the view that a low threshold of proof, not a high one, is required to establish a reasonable prospect of success, I am not persuaded that any of the alleged attacks that the applicant seeks to make on the decision of the decision maker has any reasonable prospect of success. It seems to me that in the circumstances it would be an exercise in futility to grant the application.
Accordingly, I refuse to extend time to bring the application. It follows that the matter then comes to an end. However, the motion for release from custody, which is now academic, nevertheless, is one to which I shall refer, because it has been the subject of evidence and argument.

The applicant has been in custody since he was arrested on 10 June 1993. He is being detained in the Villawood Detention Centre. The material before the Court, in addition to the material to which I have already referred, also shows to me that

on or about the middle of November 1992 the applicant signed a document headed Undertaking to Abide by Conditions for Illegal Entrants, which is annexure D to his af f idavit, and that includes a number of conditions, including one that the applicant would report to the relevant departmental officer in Parramatta on Tuesday and Friday each week, starting on Friday, 13 November 1992.

He did report, as he under took to do, to the department for some time, but not after 5 February 1993. It appears he has not approached the department and reported since then. It also appears that at or about that time the applicant moved his place of abode. There is at least one other condition which he agreed to bind himself to on the date in the middle of November 1992,

which he has not it appears adhered to - namely, that he should

not work in Australia without written authority from the

department - but I do not propose to place any particular weight

on that at all, for present purposes.

There is other evidence before the Court which would suggest that the relations between the applicant and officers of the department have not always been cordial, and may have been accompanied on his part by some degree of physical violence, and threat of it. However, on the other hand, the applicant has lived in Australia since 1986, and has it seems developed undoubted ties, to some extent, with the Australian community.

In view of the matters to which I have referred, however, I would not be prepared to put the trust of the Court in the applicant abiding any conditions as to reporting or other matters that the Court would of course necessarily impose in any successful motion for release from custody. The relevant principles are referred to in many cases. I need only refer for

present purposes to my decision in Unlugenc v Minis t e r f o r

Immigration and Ethnic A f f a i r s (1982) 43 ALR 569 especially at

573 and 574.

Had I reached a different view on the outcome of the application for leave, it would have been necessary for me to then have determined in a substantive way the motion for custody, and I would have declined it. Accordingly, both motions are dismissed.

The respondents ask for costs. In my view it is a case where the usual order for costs should be made. I order the

applicant to pay the costs of the respondents of the proceeding.

/-

/

- F

I

I certify that &is , and the preceding thizteen (13) pages are a true copy of the reasons for j,Gdgment herein of the Honourable Mr. Jpstice Lockhart.

Associate Dated: 29 June 1993

Counsel for the Applicant	.	K Osei
Solicitors for the Applicant	:	Redfern Legal Centre
Counsel for the Respondents	:	N J Williams
Solicitors for the Respondents:	Australian  Government
Solicitor
Date of Hearing	29 June 1993
Date of Judgment	.	29 June 1993