Brehoi, Nicholas v Department of Immigration and Multicultural Affairs
[1998] FCA 1312
•20 OCTOBER 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW – application for extension of time to file appeal from Administrative Appeals Tribunal’s (“AAT”) decision dismissing application to review decision of Minister to deport – applicant failed to attend AAT hearing on date fixed without good cause – Court has discretion to grant extension of time
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 11
Administrative Appeals Tribunal Act 1975 (Cth), s 42A(2)
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, cited
NICHOLAS BREHOI v
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 636 of 1998
O’CONNOR J
SYDNEY
20 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 636 of 1998
BETWEEN:
NICHOLAS BREHOI
APPLICANTAND:
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
O'CONNOR J
DATE OF ORDER:
20 OCTOBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed with costs.
NOTE:SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 636 of 1998
BETWEEN:
NICHOLAS BREHOI
APPLICANTAND:
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
O'CONNOR J
DATE:
20 OCTOBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time to file and serve an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 2 March 1998 in which the Tribunal dismissed the applicant’s application to review the decision of the Minister for Immigration and Multicultural Affairs (“the Minister”) to deport him.
If the extension of time were granted, the application would be one made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Review Act”). The power to give an extension of time for applications under that Act is in s 11.
On 26 June 1998, the applicant filed his application for extension of time together with a handwritten affidavit. In his supporting affidavit the applicant says:
He was not able to lodge an application within the 28 day period because following his release from prison on 2 January 1998 and his subsequent detention at the Villawood Detention Centre he was incorrectly informed by custodians at the Detention Centre that the hearing date for the Tribunal hearing was 22 April 1998.
As a consequence of holding fears for his own well-being in the Detention Centre and coupled with the deteriorating health of his friend, he ran away from the Detention Centre.
He had been physically abused and heavily sedated at times at the Detention Centre and ran away from the Detention Centre for this reason as well as to ensure his friend died a free man.
He was at large from 24 February 1998 to 10 April 1998 and was living at an address known to the authorities.
He had been aware of the Tribunal proceedings since August 1997 but ran away from the Detention Centre for health, humanitarian and legal representation reasons.
At the time he was arrested by the police, he was unaware of the Tribunal hearing date of 2 March 1998.
He did not receive notification of the decision of the Tribunal until 21 April 1998.
FACTUAL BACKGROUND
The applicant was born in Romania and arrived in Australia in March 1995 under the Eastern European Refugee Program.
During the period between December 1990 and August 1995 the applicant was convicted of several deportable offences. As a consequence, recommendations were made to the Minister that the applicant be deported. The applicant has appeal proceedings pending with the New South Wales Court of Criminal Appeal in relation to these criminal offences.
Also during that period the applicant commenced a de facto relationship with an Australian citizen and in September 1993 his de facto spouse gave birth to his daughter. On 6 April 1998 the Family Court of Australia gave orders that the applicant’s daughter reside with the child’s mother and that the applicant was to have no contact with the child.
On 20 August 1997 the Minister issued a deportation order against the applicant and by letter dated 29 August 1997 the applicant was advised of the deportation order. The applicant was also advised in the letter of 29 August 1997 of his entitlement to have the decision to deport him reviewed by the Tribunal. The applicant was advised that the right of appeal must be exercised within 28 days of receipt of the deportation order.
On 3 February 1998 a telephone directions hearing was held between the applicant in person and the Tribunal. At that directions hearing Deputy President Chappell set down for hearing the applicant’s application to review the Minister’s decision to deport on 2 and 3 March 1998. His solicitor was independently informed by the Tribunal of this date by letter. On 24 February 1998 the solicitor informed the Tribunal that on 19 February 1998 the applicant was found to have absconded from the Villawood Detention Centre. The solicitor concluded he was, in the circumstances, without instructions and would not be appearing at the hearing.
On 2 March 1998 Deputy President McMahon made a direction dismissing the applicant’s application pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) based on the applicant’s failure to the attend the Tribunal hearing on 2 March 1998 without good cause.
Section 42A(2) of the AAT Act is in the following terms:
“If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative … at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant – dismiss the application without proceeding to review the decision;
(b)in any other case – direct that the person who failed to appear shall cease to be a party to the proceedings.”
SUBMISSIONS OF THE PARTIES
As stated previously the applicant said in the affidavit filed in support of this application that his failure to appear at the Tribunal was because he had been told the wrong date for the hearing by those in charge at the Villawood Detention Centre. He thought the hearing was 22 April, not 2 March. Further, he had heard of the dismissal of 2 March on 21 April – outside the period for appeal. The application is therefore that a discretion should be exercised in his favour to have his appeal heard because he was the victim of the carelessness or error of others and he had been misinformed of the date of the hearing.
The respondent submitted that the extension of time to lodge the application should be refused primarily on the ground that the substantial application lacked merit. As the decision sought to be reviewed was one made under s 42A of the AAT Act and was discretionary, the respondent submitted that this discretion was properly exercised in the circumstances of the case.
The applicant was, the respondent submitted, given notice personally of the hearing date, as had his solicitor, by letter. The respondent tendered a bundle of documents from the Tribunal file, without objection, which supported the submission that the respondent had participated in the telephone directions hearing held by the Tribunal at which the hearing dates were set. The respondent also tendered an affidavit of Andrew Robinson Pearson, solicitor, dated 21 September 1998 annexing a number of documents. At page 132 of these annexures is a copy of a letter written on behalf of the applicant to Deputy President McMahon, the decision maker whose decision is the subject of this application. In this letter he said:
“The reason that I do not attend the Tribunal hearing on the relevant date was due to the fact that I had left the confines of Villawood Detention Centre on my own accord on the 22nd Feb 1998.”
He mentioned no alternative date, nor that he had been misled by others.
During the hearing before me, the applicant gave a further explanation for not appearing at the Tribunal hearing. He said he had confused the date of the hearing with the date of a hearing in the Family Court of Australia. He also said that the explanation in the letter to the Tribunal and his affidavit in these proceedings had been prepared by two different people, both of whom had misunderstood what he had told them. This explained why three different versions of why he failed to appear at his hearing had been given.
DECISION
Section 11 of the Review Act does not provide criteria to guide the exercise of the discretion sought in this case to extend time for an application for review by this Court.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 however Wilcox J has conveniently set out a number of principles which, he said, had been distilled from several Federal Court decisions where the discretion in s 11 had been exercised. These are summarised as follows:
There is no onus on an applicant for an extension of time, however, in each case a court must be satisfied that it is proper to extend time. The extension must be fair and equitable in all the circumstances.
The applicant must not be seen as resting on his rights.
Prejudice to the respondent should be considered.
However, absence of prejudice to the respondent is not conclusive in favour of the applicant.
The merits of the application to be made must be considered.
The respondent in this case relies on the absence of merit in the application as the principal reason for submitting that leave should be refused.
There is, in my view, no prejudice to the respondent in granting this application, nor could I conclude that the applicant had rested on his rights. However, I am not satisfied that, in the circumstances of this case, it is fair and equitable to extend the time, having considered the merits of the application.
This applicant gave three different explanations for his failure to attend the Tribunal hearing. There is, in my view, no credible reason for these discrepancies. I do not accept the submission of the applicant that two friends on two separate occasions misunderstood his instructions when writing letters and preparing documents on his behalf.
As the respondent submits, the discretion exercised pursuant to s 42A by the Deputy President is a wide one. There is evidence of notification of the applicant and of his solicitor by the Tribunal. There is no evidence of any attempt to contact the Tribunal by the applicant before the hearing. His solicitor, being left without instructions, declined to appear other than to explain in person his position as a matter of courtesy. The application, in my view, has little merit.
The application for extension of time to lodge it is dismissed with costs.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor
Associate:
Dated: 20 October 1998
Applicant: Self-Represented Counsel for the Respondent: Ms R M Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 September 1998 Date of Judgment: 20 October 1998
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