Alade v Minister for Immigration - [2013] FMCA 118

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALADE v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 118

MIGRATION – Extension of time application – consideration of delay and merits of application for review.

Migration Act 1958 (Cth), ss.5, 338(2) & (7A), 347(1)(b), 347(5), 477(1) & (2), 494C(4)
Migration Regulations1994, reg.4.10(1)(1)

Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470; (2000) 177 ALR 491
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305
Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; (1986) 14 IR 341

Applicant:

OLUDARE SAMSON ALADE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 880 of 2012

Judgment of:

Neville FM

Hearing date:

5 October 2012

Date of Last Submission:

3 December 2012

Delivered at:

Canberra

Delivered on:

22 February 2013

REPRESENTATION

Counsel for the Applicant:

Self represented

Solicitors for the Applicant:

n/a

Solicitor/Advocate for the First Respondent:

Mr Moloney

Solicitors for the First Respondent:

Clayton Utz, Canberra

Counsel for the Second Respondent:

n/a

Solicitors for the Second Respondent:

n/a

ORDERS

The Application for an extension of time is dismissed.
The Applicant is to pay the costs of the First Respondent to be either agreed or assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

SYG 880 of 2012

OLUDARE SAMSON ALADE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an application filed in the Sydney Registry of this Court on 20^th April 2012, the Applicant, Mr Alade, seeks to challenge a decision of the Migration Review Tribunal (“the MRT”) that issued on 18^th June 2009.
As is immediately evident from the date of the decision and the date of his Application, he is out of time by some three years or thereabouts. The time within which an application to this Court must be brought is “within 35 days of the date of the migration decision.”[1] Accordingly, he needs, and seeks, leave of the Court to proceed with his Application, pursuant to s.477(2) of the Migration Act 1958 (“the Act”). That leave is opposed by the First Respondent.
[1] Migration Act 1958, s.477(1).
By an Application in a Case, filed on 20^th June, Mr Alade sought a stay of the proceeding, to transfer the matter to the registry of the Court in Canberra, and that the hearing date of 27^th June be vacated until “four weeks from today.” The date to which Mr Alade referred was in fact only a directions hearing.
In any event, orders were made by Barnes FM on 21^st June transferring the matter to this Registry.
On 9^th August, orders were made by the Registrar, among other things, listing the matter for directions on 27^th August. On that date, orders were made which provided a timetable for the filing of submissions. The matter was fixed for hearing of the extension of time Application on 4

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCA 118
Decision Date

CaseChat Overview and Summary

The case of Alade v Minister for Immigration was heard in the Federal Court of Australia. The Applicant, Alade, sought an extension of time to challenge a decision made by the Minister for Immigration. The primary issue before the Court was whether the Applicant's significant delay in seeking relief should be excused, despite the statutory time limits for such applications having been exceeded.

The Court examined the principles governing the extension of time in judicial review matters, highlighting the importance of adhering to procedural rules. His Honour noted that while the legislation governing immigration decisions is complex and the Applicant’s personal circumstances have been troubled, these factors do not necessarily justify a departure from the strict application of time limits for judicial review. The Court emphasised that, in the absence of exceptional circumstances or conduct by the respondent that caused the delay, the rigid application of time limits is necessary to uphold the integrity of the judicial process.

Ultimately, the Court found that the Applicant's delay in making the application and the lack of any exceptional circumstances warranted the refusal of the application for an extension of time. The Court also ordered that costs be awarded either by agreement between the parties or, failing that, assessed by the Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

And at [16], his Honour said (emphasis added):Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [[1965] 1 WLR 8 at 12], "[t]he rules of court must prima facie be obeyed".The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court. His Honour also said, at [17], that the inability to obtain favourable legal advice is no ground for extending time. There is no dispute that the extension of time to this Court by the Applicant is long out of time - by years. The time for lodgement of the review with the MRT was only very slightly late (5 days). I accept readily (as earlier noted) that the legislation (and regulations) with which the Applicant has to grapple is inordinately complex. So much has been regularly noticed by superior courts and judicial officers of those courts in extra-judicial writings. I also accept, to some degree at least, that the Applicant’s personal circumstances have been troubled, and seemingly so over a significant period of time. All of that said, the principles to be applied in applications of this kind are clear. They have been set out earlier in these reasons. Applying those principles to the facts of this case, and taking the Applicant’s circumstances into account in the highest regard possible, the merits of his Application are such that I have no confidence that there is any reasonable prospect of success. Further, the delay of more than three years in making application to this Court, and particularly in the light of the FOI application made so long ago (September 2009) to secure relevant information, all militate against the success of the Application and formally to require the Application for an extension of time to be refused. The Court so orders, with costs to be either agreed or assessed.

Ratio Decidendi

Legal Principle Established

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