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 20th April 2012, the Applicant, Mr Alade, seeks to challenge a decision of the Migration Review Tribunal (“the MRT”) that issued on 18th 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 20th 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 27th 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 21st June transferring the matter to this Registry.
On 9th August, orders were made by the Registrar, among other things, listing the matter for directions on 27th 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 4th October.
At the conclusion of the hearing on 4th October, further orders were made that allowed for the filing of additional, limited written submissions.
I should also note the following further procedural matters.
Mr Alade filed an Amended Application on 22nd August which expanded the grounds of review from those set out in his original Application.
On 19th September, Mr Alade filed an Application in a Case in which he sought orders for a stay of the matter generally so that it might otherwise be dealt with by way of “out of court settlement, negotiation or mediation…”
Submissions were filed on behalf of the First Respondent on 27th September 2012, and by the Applicant on 11th October.
If granted leave for an extension of time, the Applicant would seek judicial review of the decision made by the MRT on 18th June 2009.
The MRT found that it did not have jurisdiction to consider the Application for Review on the grounds that the Application was not lodged within the prescribed time period of 21 days.
The Applicant submits inter alia, among other things, that the MRT’s decision “carries error of law, error within the decision, procedural unfairness and jurisdictional error.”
The Applicant’s Submissions
Not only, but particularly, because the Applicant is a self-represented litigant, for the purposes of these reasons I will adopt generally his account of events. Accordingly, I set out, almost in full, the Applicant’s written submissions, thus [minor spelling and some grammatical errors only have been corrected to assist the “readability” of them]:
When the decision in dispute under it Findings and REASONS (19-20) page 104 in the Green Book emphatically stipulate that I was correctly notified based on e-mails (52-55 Greenbook) confirming same; while I have previously inform M.R.T over the phone that I received the decision very late and I also informed D.I.A.C in it office.
It is believable and factual as it happens so, that myself (the Applicant) believe and accept that the decision of DIAC will be sent via electronic means as I elected to be communicated with, to, between and by. The e-mail message exchanged between by me and Ms Amanda Jones; the decision maker points to same conclusion/take. Given that we have communicated extensively via e-mail on one particular medical examination that gave rise to the visa refusal under public criteria/criterion. Furthermore, I notify D.I.A.C that I got their decision very late; and that is why I subpoena D.I.A.C and M.R.T records and case notes. If the Court allows; I want to request M.R.T department’s phone records to prove this and CCTV footage to show that I personal walked into the Department’s office to enquire of M.R.T decision . This is when I did not receive any mail of notification or update from either M.R.T or D.I.A.C. But, negatively; the subpoena has not be honoured because it was severe irrelevant and that cost did not accompany it; even when my right to work has being ceased since 2009. During series of meetings, phone conversation and interviews with D.I.A.C and M.R.T ; I have insisted that I did not receive the notification within the 7 days prescribed ; a copy M.R.T’s invitation to comment Letter was relayed to me by D.I.A.C and a copy faxed to D.I.A.C for my records. Given the take of the MIGRATION ACT 1958 - SECT 494C (7a,b); I believe I have been hard done. And, this blunder created credibility issues and wrong presumption on FM Cameron on my type of person. As this resulted in my credibility being devalued in SZOVO v MIMIA and R.R.T which is at the moment putting my life and my whole family’s lives at risk; couple with the Psychologist doctor scandal. I am a foreigner in Australia; I have principles and personal standard of rite to veracity. I believe; when I stated that I did not get the letter on time; I should be believed.
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
The ‘no jurisdiction’ decision of M.R.T Tribunal lacks natural fairness, procedural fairness and it encompass error of law. This stance that permit the Court to ask for clarification from the respondent on:[ Par.7 of the MRT's decision of June 2009 refers to s.338(2) of the Migration Act as the relevant section, and in the same paragraph the time frame for lodging an application for review, being 21 days. The MRT refers to s.347(1)(b)(i) of the Act and r.4.10(1)(a). The rules refer to 21 days. However, the section referred to (s.347(1)(b)(i)), which refers to s.338(2), prescribes a period of 28 days.] All these, goes to support the Applicant’s doubt that the Tribunal and D.I.A.C are not aiming to afford me Procedural fairness or natural justice by a fraction of it . I was ill advised by the Tribunal itself as it is in Wilson v Woolworths [2010] FWA 2480 (15 April 2010)[30]; Wilcox J in Hunter Valley Developments Pty Ltd and Ors v. Cohen (1984) 58 ALR 305; Sheppard J in Wedesweiller and Others v Robert William Cole and Others [1983] FCA 94; (1983) 47 ALR 528; being that: : The MRT and R.R.T has this tabular calculator for days limitation and calculator of a review, to comment, reply, answer to a question and appear. It is called DATE CALCULATOR ; a computerised form of telling working days from and non-working working days within the scope of the time criterions in the Migration Act of 1958. This is to hinder human error; on the part of the decision maker.
The Tribunal's awareness of it working days and it non-working days is formulated to help the decision maker and the decision maker only. In understanding what time the application was filed and if within or not within those days prescribed by the 347(1) (b) (i). Not affording myself (the Applicant) same privilege amount to bad faith and malicious attempt to not afford me procedural fairness.
The same days calculator is far more visible for the decision maker and Tribunal to see, reason with it and how it days of working days or normal days are stipulated by the calculator when making the decision. But, same can not be said to psychological and physically injured, maltreated and helpless student like myself as at that time. Reading through the decision I understand I have 28 days and 28 days is what I was working with.
The decision, findings and reasons on working and non-workings (as days and working days respectively) are so legally formulated and technically complex for someone like myself in such situation, that I was back then; to understand them in such simple context without a legal aid.
Being that, I sought out legal representation from a N.S.W Law Society on many occasions that a security guard was later called on me. Legal Aid refused to represent me and Pro bono services as well in N.S.W.; I believe this Honourable Court will agree with me that what takes the this Court to ask for clarification on Par.7 of the MRT's decision of June 2009 refers to s.338(2) of the Migration Act as the relevant section, and in the same paragraph the time frame for lodging an application for review, being 21 days. The MRT refers to s.347(1)(b)(i) of the Act and r.4.10(1)(a). The rules refer to 21 days. However, the section referred to (s.347(1)(b)(i)), which refers to s.338(2), prescribes a period of 28 days; at this junction; is to say, I would have been confused too as at that time. On same premise; I sought relief in a right Court: Federal Magistrate Court; Sydney; but within a wrong case/matter: SZOVO; that such can not be allowed in that forum.
There is a public interest standpoint that should be protected in this case. There will be many self litigant that would not understand the contrast of the respondents arguments (filed by way of electronic means on 3/12/2012) on Par.7 of the MRT's decision of June 2009 refers to s.338(2) of the Migration Act as the relevant section, and in the same paragraph the time frame for lodging an application for review, being 21 days. The MRT refers to s.347(1)(b)(i) of the Act and r.4.10(1)(a). The rules refer to 21 days. However, the section referred to (s.347(1)(b)(i)), which refers to s.338(2), prescribes a period of 28 days. In plight of this, this Court will find fit on issues raised by the Honourable Court on same, to allow an extension of time in this matter. This will serve as onus unto the respondent to make a concise explanation, understandable quotation of the Act in it future decisions that will be understandable even to a lay-man. This is in line to protect helpless self litigant in person like myself; with the reason for legal aid refusal, pro-bono unsuccessfulness and ever reduced/limited N.S.W Law Society resources to help my case on time . As High Court pointed out in Mckain v R W Miller & Co (SA) Pty Ltd(1991) 174 CLR 1 at 42-4 per Brennan, Dawson, Toohey and McHugh JJ, Pedersen v Young (1964) 110 CLR 162 at 166-7. The majority of their honours agree with the take of Menzies J in Pedersen v Young.
The Applicant then referred [again] to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen and his Honour’s discussion of principle in relation to extension of time applications.[2]
[2] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
After again highlighting or referring to his dire circumstances, and as previously noted, the Applicant submitted that the MRT’s decision was infected with “error of law, procedural unfairness, error within the decision and jurisdictional error.”
In addressing the Department’s decision to refuse to extend his student visa, the Applicant set out, among other things, his work history since 2005. He also contended that there was no, or insufficient, evidence before the MRT to enable it properly to make a decision in relation to his visa.
First Respondent’s Submissions
The Respondent opposes the Application for leave for an extension of time concerning the Application for judicial review of the MRT’s 2009 decision in relation to the Applicant.
The decision in question was the determination by the MRT that it did not have jurisdiction to review the Applicant’s Application because of the fact that it was made outside of the time prescribed - being 21 days - pursuant to regulation 4.10(1)(a) of the Migration Regulations 1994 (“the Regulations”).
In seeking judicial review of the MRT’s decision the Applicant seeks (and requires) the Court to exercise its discretion to extend the time allowable to a period of some 3 years and 2 months.
The First Respondent submits that is within the Court’s discretion to grant an extension of time if the Court is satisfied that it is necessary in the interest of the administration of justice. In deciding these matters, the Court has, on previous occasions, had regard to the considerations set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, namely:[3]
a)whether the applicant has demonstrated an “acceptable explanation of the delay” and whether it would be “fair and equitable in the circumstances” to extend the time;
b)any action taken by the applicant which continues to make the decision-maker aware that the finality of the decision is being contested;
c)any prejudice to the respondent which may have resulted from the delay;
d)any unsettling of people other than the respondent, or of established practices;
e)the merits of the substantial application; and
f)considerations of fairness as between applicants and other persons in like positions: it is not only prejudice vis-à-vis the parties but against the wider public interest which must also be taken into account.
[3] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at pp.348-349.
From his Amended Application, the Applicant states that he was confused by the appeal process in relation to his application for a student visa and his application for a refugee protection visa. Respectfully, in my view, he is not, and will not be, the first person to be so confused. That being so, the First Respondent submits that it may be that the Applicant has conflated the two different applications -extension of time, and judicial review. Again, respectfully, in my view, he is not, and will not be, the first person to be so confused.
The Applicant also claims he was the victim of an assault in 2007 and the physical and mental injuries he suffered (and from which he continues to suffer) have made it difficult for him to continue to be a self-represented litigant. For my part, if the circumstances outlined in the Applicant’s material be even half true, he has suffered alarmingly and significantly.
The First Respondent further contends that none of the circumstances outlined by the Applicant provide sufficient explanation for such a lengthy delay of more than three years. The First Respondent challenges the Applicant’s account in any event. For example, the First Respondent notes that the Applicant made an FOI request for the MRT file in relation to his application in September 2009, and having received a copy at that time, he was at liberty to lodge an application for review of the decision much earlier than he has done, if he desired to do so.
Having regard to all of the circumstances, the First Respondent contends that the Court will not be satisfied that the Applicant’s explanation for the delay satisfies the test described by the Full Court of the Federal Court in Jess v Scott (1986) 12 FCR 185 (at 195) as requiring something very persuasive to justify a grant of leave.
As earlier noted, the Applicant sought to obtain a copy of the MRT file in relation to his application pursuant to the Freedom of Information Act 1982 in September 2009. The Court Book discloses that the Applicant did not communicate with the MRT again until April 2012, when he requested another copy of the decision dated 18th June 2009.
Accordingly, for a significant period of time neither the First Respondent nor the MRT were aware that the Applicant wished to challenge the June 2009 decision.
The First Respondent concedes that it will not suffer any prejudice should the Applicant’s extension of time be granted but notes that the mere absence of such prejudice is not enough to justify the grant of an extension as per Hunter Valley Developments Pty Ltd v Cohen. The First Respondent also submits that there is an advantage in ensuring finality in administrative decision making.
The First Respondent contends that it would not be fair and equitable to grant the Applicant an extension of time in the circumstances of this case. The First Respondent contends that the prescribed legislative time-frames should be applied except in “special circumstances”, and it is the First Respondent’s submission that no such circumstances exist in this case sufficient to warrant overturning the established practice of declining to entertain an application that is lodged so long outside time.
Further, the First Respondent also contends that the Applicant’s substantive Application lacks any merit. For example, the First Respondent notes that the grounds advanced by the Applicant in both his Application and Amended Application point to no legal error in the MRT’s decision in June 2009.
The First Respondent also observes that if an application to the MRT is lodged out of time, the Second Respondent has no jurisdiction to consider the application. Further, it is said that there is no power in the Act that confers any discretion on the MRT to consider such an application.
Finally, the First Respondent highlighted (again) that the Applicant’s Application was filed with the Court well outside the statutory time limit prescribed by s.477(1) of the Act; accordingly the Application should be refused because (a) the Applicant has not demonstrated an adequate explanation for the delay in filing the Application and (b) the substantive Application lacks any merit.
In response to a further query from the Court in writing, the First Respondent noted that regulation 4.10(1)(a) of the Regulations relevantly states: "For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal: (a) if the MRT-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act - starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which notice is received;"
By way of summary, the First Respondent contended that, in order to determine the appropriate time for the filing of an application, it should be noted that:
a)the term "prescribed" is defined in s.5 of the Act to mean "prescribed by the Regulations";
b)S.347(5) of the Act states: "Regulations made for the purposes of paragraph 1(b) may specify different periods in relation to different classes of MRT-reviewable decision (which may be decisions that relate to non-citizens in a specified place)";
c)S.347(1)(b) of the Act does not prescribe a particular period but indicates that a period will be prescribed, and that in this case it will be a period ending "not later than" 28 days after notification;
d)in the light of the matters set out in (a), (b), and (c) above, the Regulations can prescribe a period of less than 28 days for the filing of an application for review.
The First Respondent contends that the Delegate’s decision, dated 23rd March 2009 to refuse to grant the Applicant a student visa, was an MRT reviewable decision for the purposes of s.338(2) of the Act. The prescribed time-frame in relation to filing an application for review of the decision with the MRT is determined by reference to ss.347(1)(b) and (5) of the Act, and the "prescribed period" in regulation 4.10(1)(a) of the Regulations, with the result that the period of time in which the Applicant was to file an application for review of the Delegate's decision with the MRT was 21 days (as referred to in the MRT decision dated 18th June 2009).[4]
[4] By way of observation only: respectfully, and using the language of superior court judicial officers, the combination of the Act and the Regulations is byzantine and regularly impenetrable. How a self-represented litigant could navigate their way through such thickets is unfathomable. To use the language in particular of the soon to retire Chief Justice of the Federal Court of Australia and soon to be High Court Justice, to engage with some Commonwealth legislation is to enter a parallel universe.
Section 494C(4) of the Act provides that if the Minister gives a document to a person by the method in s.494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document 7 working days after the date of the document (in this case on 1st April 2009). The Applicant was therefore required to file an application for review with the MRT by 21st April 2009, but faxed an application for review of the Delegate’s decision (dated 23rd March 2009) to the MRT on Sunday, 26th April 2009, being outside the 21 day time limit.
As a consequence, the MRT determined that it did not have jurisdiction to review the delegate's decision dated 23rd March 2009.
The Applicant then sought to file an application for review of the decision of the MRT in the Federal Magistrates Court on 20th April 2012, being well outside the time limit prescribed by the Act.
Consideration & Resolution
Accepting the authority of the decisions to which both sides of this Application have variously referred – and in particular, Hunter Valley Developments Pty Ltd v Cohen and Jess v Scott – I would seek only to note further the decision of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470. His Honour was, of course, dealing with an extension of time application in the light of the High Court Rules. Respectfully, in my view, his Honour’s comments have wider application. Further, there is patently no inconsistency with the outline of principle by McHugh J and that of the earlier Federal Court of Australia decisions to which reference has been made.
In Marks, McHugh J said, at [15] (internal citations omitted; emphasis added):
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.
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.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 22 February 2013
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