Attard v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 1088

/off 72

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

CATCHWORDS

PRACTICE AND PROCEDURE - extension of time to file an appeal out

of time - whether satisfactory explanation of delay - existence

of a reasonably arguable case.

Federal Court Rules: Order 53 rule 7.

v

PAUL ATTARD v MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT AND

ETHNIC AFFAIRS

LOCKHART, MORLING and EINFELD JJ.

SYDNEY

L 29 OCTOBER 1992

l

l

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 790 of 199

)

GENERAL DIVISION 1

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:  PAUL ATTARD

Applicant

AND :  MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT AND ETHNIC AFFAIRS

W Respondent

JUDGES MAKING ORDER: LOCKHART, MORLING and EINFELD JJ.

DATE ORDER MADE:	29TH OCTOBER, 1992
PLACE ORDER MADE:	SYDNEY *

MINUTE OF ORDERS

l THE COURT ORDERS THAT:

1.   The application for an extension of time to appeal be dismissed.

2. The applicant pay the respondent's costs of the

application.

L

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 790 of 199

1

GENERAL DIVISION 1

ON APPEAL FROM THE GENERAL

BETWEEN :  PAUL ATTARD

Applicant

AND:  MINISTER FOR IMMIGRATIONr LOCAL GOVERNMENT AND ETHNIC AFFAIRS

. .

W Respondent

COURT :	LOCKHART, MORLING and EINFELD JJ.
DATE :	29TH OCTOBER, 1992  t
PLACE :	SYDNEY

REASONS FOR JUDGMENT

I THE COURT:

There is before the Court this afternoon an application by
Paul Attard, the applicant, pursuant to 0.53 r.7 for an order

extending the time within which he may appeal from a decision of

U	the Administrative Appeals Tribunal, constituted by its then president (~avies J.), made on 26 August 1983, whereby the Tribunal decided to affirm the decision of the respondent, the ~inister for Immigration, Local Government and Ethnic Affairs, to deport the applicant.	he applicant asserts through his counsel two grounds in support of the application. The first is that the applicant can explain satisfactorily the delay of more than nine years between the date of the Tribunal's decision and the making of this application for extension of time. The second is that the applicant has reasonable prospect of success on the appeal.
~t is necessary to state briefly certain of the relevant facts as they bear in particular on the question of delay. The applicant is a citizen of Malta, having been born there on 10 February 1944. He arrived in Australia on 19 September 1964 with the intention of residing here permanently. He was then 19 years
'W	of age. In July 1966 he was cbnvicted of an offence relating to custody of stolen goods. He was convicted in January 1967 of an offence of stealing and later in the same year of breaking and . . * entering a shop and stealing certain money and articles. He was sentenced to imprisonment with a non-parole period being fixed.

l On 20 February 1969 the applicant was convicted of murder and sentenced to life imprisonment. He appealed against his conviction and there was a retrial. On 11 December 1969 he was again found guilty and sentenced to life imprisonment. He went to prison and was released on licence on 19 April 1982. A

L/

deportation order against him was signed by the Minister on l August 1982. The applicant then applied to the Tribunal for a review of the Minister's decision to deport, On 26 August 1983 the Tribunal affirmed the Minister's decision to deport.

Subsequently the applicant committed a further offence for which he was charged by the New south Wales crime enforcement authorities. He was on bail from 1983 to 1987 when he was convicted of the offence and sentenced to a further term of imprisonment. He was recently released from custody. The deportation order on which reliance is placed by the Minister is still the deportation order of 1 August 1982, though it is subject to a decision by that Minister's successor on 18 October 1983 affirming his predecessor's decision to deport the applicant.

The applicant seeks to explain the passage of some nine

L. years or more between the date of the Tribunal's decision and the

date of his application presently before the Court on the basis

that the solicitor then acting for him (who has since died) did

t

not inform him that he had any further right of appeal in the matter and that, if he had known that he had such rightshe would have exercised them.

The evidence explaining that delay is somewhat scant, but
the Court is prepared to act on the basis that, whatever may have

been said by the applicant's solicitor (Mr Perryman) to the

L. applicant, it has not carried in the applicant's mind the impression that he had a right of appeal which he could have exercised. The applicant has known since approximately August of this year that he may have rights of appeal, but the fact that some months have passed since then is not in itself a matter which the Court regards as constituting unreasonable delay.

The critical question is whether or not, if an appeal pdrsued by the applicant, he would have a seriously argua case. ~t is not necessary to refer to all the argthnents th have been advanced by his counsel who said all that could reasonably be said in support of the applicant's cage.

Reliance wag placed upon what counsel for the applica

asserted was the applicant's good conduct since the giving of th

Tribunal's decision in 1983, forthe purpose of establishingthat

L, the applicant has, particularly in more recent times, reformed his previous criminal habits rind is now a more proper member of the community. Counsel foreshadowed an application to adduce C fresh evidence on this appeal to make good this proposition. Such evidence could not, however, have any bearing on the

, question of whether the Tribunal erred in the making of its

decision in 1983. Questions of error, if any, must be determined by the Court having regard to the material that was then before the Tribunal.

The Court is not satisfied that there is any arguable case that the Tribunal gave undue weight to any irrelevant considerations or that it failed to give weight to relevant matters, or that it otherwise fell into error. Indeed, it is apparent from a reading of the ~ribunal's reasons for decision, that it did take into account the matters which were put to it in argument to which the Tribunal referred in its reasons. The learned President of the Tribunal said that he found the case an

I

exceptionally difficult one. He then engaged in a balancing exercise and gave very substantial weight to the fact that the applicant's family are in this coimtry and to the hardship he would suffer if he returned to Malta.

The applicant's prospects of success on any appeal wodid be very slight indeed and not seriously arguable.

The Court wishes to make it clear that it is not today determining the question whether the applicant was rightly or wrongly convicted of murder in December 1969. The Court must act on the basis that that was a correct conviction. The Court's -. task in the present matter is to see whether the applicant has established a case for extension of time within with to appeal

ii

, from the Tribunal's decision of 1983. We realise the serious consequences to the applicant of a finding that he is not allowed to prosecute an appeal and have taken that into account. The Court is of the view that the application must be dismissed.

The order of the Court is that the application for extension

of time to appeal be dismissed. The applicant must pay the
respondent's costs of the application.

Counsel for the applicant now seeks an order that there be a stay of the deportation order at least for a short time so that the applicant can consider his position. There is nothihg before the Court which would at this stage found the Court's jurisdiction to grant a stay of the deportation order. If the

applicant files an application under the Administrative Decisions (Judicial Review) Act 1977, that may ground the Court's jurisdiction to consider a stay of the deportation order, assuming the subject matter of that proceeding is, as counsel hag foreshadowed, the alleged invalidity of the deportation order.

Counsel for the applicant naturally wants to consider his

client's position; and that will no doubt take more than a matter

L. of hours, but probably not more than a matter of a day or two.

The Court has enquired of counsel for the ~inister if he is

prepared to give an undertaking for a few days not to execute the

-.

deportation order. It is not sdrprising that counsel for the Minister has indicated that his solicitors must obtain

l instructions on this question. Whether the Minister voluntarily agrees to not execute the stay is a matter for the Minister; but the Court would hope that in all the circumstances the Minister would give favourable consideration to such an undertaking to subsist for a short period, until Monday of next week.

t

I certify that this and the

preceding five (5) pages are a true copy of the reasons for judgment herein of the Court.

Counsel for the Applicant : G.D. Wendler

Solicitors for the Applicant :	Warwick Hunt
Counsel for the Respondent	G.T. Johnson
Solicitors for the Respondent :	Australian Government Solicitor
Date of Hearing	29 October 1992
Date of Judgment	29 October 1992