Cartledge v Minister for Immigration

[2015] FCCA 3430

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARTLEDGE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3430

Catchwords:
MIGRATION – Employer Nomination (Residence) visa – review of decision of Migration Review Tribunal – extension of time to bring proceedings – application manifestly out of time – no adequate excuse given for delay – no reasonable prospects of success – application for an extension of time dismissed.

Legislation:

Freedom of Information Act 1982 (Cth)

Migration Act 1958 (Cth), ss.48, 347, 351, 476, 476A(3), 477

Migration Legislation Amendment Act (No.1) 2009 (Cth)
Migration Regulations 1994 (Cth), item 1114A of sch.1, cl.856.211 of sch.2, cls.3001, 3003, 3004 of sch.3

Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252

Applicant: KEVIN PETER CARTLEDGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE/MIGRATION REVIEW TRIBUNAL)

File Number: SYG 1631 of 2015

Judgment of: Judge Smith

Hearing date: 29 September 2015

Date of Last Submission: 29 September 2015

Delivered at: Sydney

Delivered on: 21 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Mr D. McLaren, Minter Ellison

ORDERS

1. The application for an extension of the period within which to make an application for relief under s.476 of the Migration Act 1958 (Cth) be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1631 of 2015

KEVIN PETER CARTLEDGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE/MIGRATION REVIEW TRIBUNAL)

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia in 1998 on a tourist visa. In 1999 he was granted a Business (Long Stay) visa subclass 457. He held a visa of this type until 13 November 2006. Shortly before that date he attempted to lodge an application for an Employer Nomination (Residence) (Class BW) visa together with a cheque in the amount of $1990 which was payable as the visa application charge at that time: item 1114A of sch.1 to the Migration Regulations 1994 (Cth). However, that cheque was dishonoured on presentation. Upon being notified of this by the Department of Immigration, the applicant lodged a fresh application on 14 December 2006 together with the visa application charge.

2. On 24 April 2007 a delegate of the Minister made a decision to refuse to grant the applicant a visa and the applicant applied to the then Migration Review Tribunal[1] for review of that decision. One of the reasons for the delegate’s decision was that no valid application had been made until 14 December 2006 and, as this was more than 28 days after the expiry of the applicant’s last substantive visa, the applicant did not satisfy the criteria for the grant of the visa contained in cl.856.211(2) of sch.2 to the Regulations.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth), sch.2.

3. The Tribunal affirmed the delegate’s decision on 5 May 2008. The applicant now seeks judicial review of that decision under s.476 of the Act. The application was made on 16 June 2015.

Extension of time

1. An application under s.476 of the Act must be made within 35 days of the date of the decision: s.477(1). That requirement was introduced by the Migration Legislation Amendment Act (No.1) 2009 (Cth) and applies to judicial review applications made on or after the commencement of sch.2 to that Act: item 7 of sch.2. Schedule 2 commenced on 15 March 2009. The relevant period within which an application for orders under s.476 must be made in respect of migration decisions made before that date is 35 days after 15 March 2009. In light of that, the applicant is just over six years out of time to seek review under s.476.

2. However, the Court has power to extend the period within which an application may be made as it considers appropriate if:

   …

   a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   …

3. There is no dispute that the first of these conditions has been satisfied in this case. The question for determination is whether the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

4. In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252 Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under s.477(2) of the Act. His Honour explained the matters relevant to an application under s.477(2) as follows:

   [46]There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”.  The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

   [47]The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include:

   (a)     Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)     Whether there is any prejudice to the Minister;

   (c)     Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [48]The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

5. That said, given the length of the extension sought, I would only reach the relevant state of satisfaction if I were persuaded that the applicant’s case was "exceptional": Vella v Minister for Immigration & Border Protection [2015] HCA 42 at [3] (Gageler J referring to Re The Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [13]; 177 ALR 491 at 495; [2000] HCA 67, citing Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 481; [1990] HCA 30).

Reasons for delay

1. The applicant relied upon a number of affidavits in support of his application for an extension of time. In his first affidavit of 16 June 2015 the applicant set out a number of matters which could be taken as reasons for which he did not apply for judicial review in a timely manner. First, he said that the Tribunal advised him that the only recourse was to seek the Ministers intervention; secondly, he referred to contact by him with the Commonwealth Ombudsman in 2008 when he was told that no investigation could be undertaken while the Department was conducting an ongoing investigation.

2. The first of these matters appears to arise from the following statement made by the Tribunal during the hearing conducted by in January 2008:

   And yet look, I mean if at the end of the day, I mean if the Tribunal is in a position where it has to affirm and there’s no other way around it, the Minister of Immigration actually does have a discretion. In particular cases, humanitarian discretion. So you can always make an application to the Minister for exercise of that humanitarian discretion.

3. There is no suggestion in this passage, or anywhere else in the evidence, other than the applicant’s own affidavit, that the Tribunal ever advised the applicant that the only way in which the applicant could obtain a decision different to that of the Tribunal was to apply to the Minister for the exercise of his discretion under s.351 of the Act. Rather, the evidence establishes to my satisfaction that the Tribunal only informed the applicant that this was one avenue available to him if he were dissatisfied with the Tribunal’s decision. It appears that this is in fact what the applicant did.

4. The first application to the Minister by the applicant was made on 8 August 2008. That application was refused and the applicant was notified of this by letter dated 23 October 2008. There was also a second application made in 2009. On 10 September 2009 the Minister decided not to exercise his power to intervene.

5. The fact that the applicant applied to the Minister for the exercise of his power under s.351 may, depending on the circumstances of the case, constitute a reasonable excuse for not bringing legal proceedings in respect of the Tribunal decision. That would particularly be so if, for example, the applicant had been advised to take that course and relied on that advice. However, even if it were the case that the applicant was misled by the Tribunal or otherwise thought that an application to the Minister was his only recourse, the applicant has not given any explanation as to why he failed to apply for judicial review between September 2009 and June 2015.

6. In any event, I do not accept that the applications to the Minister were a reasonable excuse for delay. First, the Department’s records relating to the second application show that the applicant’s concerns were with the Department rather than with the Tribunal. These are set out in greater detail below. Further, at the highest, I find that the evidence establishes that, rather than being misled, the applicant either misunderstood what the Tribunal told him, or simply disregarded the option of judicial review in favour of other avenues.

7. The matter of the Commonwealth Ombudsman appears to have been a suggestion made by the Tribunal in response to issues raised by the applicant at the hearing: see Transcript p.24. The applicant seems to have raised with the Ombudsman a number of concerns with the way in which his visa application was dealt with by the Department. Amongst those were: potential mishandling of files between the various offices of the Department of Immigration; whether or not he was entitled to work at particular times; advice given to him about times for making applications for review (although the applicant misunderstood this is relating to the period within which he was required to make his visa application); the fact that the name of another person and other details not relating to the applicant appeared in several places in documents contained in his departmental file; and, that he wrongly had a s.48 bar imposed upon him.

8. Those matters did not have any impact upon the decision made by the Tribunal. More importantly for present purposes, they do not provide a reasonable explanation for the failure by the applicant to bring his application for judicial review within a reasonable period after the Tribunal’s decision. At their highest, these matters prove to be a temporary distraction to the applicant in that he focused his attention on them rather than on seeking to challenge the validity of the Tribunal’s decision. Even if such a distraction were understandable, as with his application to the Minister for intervention, the applicant does not explain sufficiently, or at all, the time at which he became aware of the availability of judicial review and the reason why he did not take any steps in that direction until mid-2015.

9. On 6 December 2013 an investigation officer at the Commonwealth Ombudsman informed the applicant that she had finished investigating his complaint about the Department of Immigration. Amongst other things, the officer concluded that the reference to the other person on the applicant’s file was a “cut and paste” clerical error which had been acknowledged by the Department. She also found that the applicant was not currently subject to a bar under s.48 and that there were no grounds for her to be critical of either the Department of Immigration or another Department of which the applicant had been critical.

10. The applicant has also put on evidence of applications made by him in 2015 to the Department of Immigration for release of information under the Freedom of Information Act 1982 (Cth). None of that explains any delay by the applicant and indeed, all that it shows is that the applicant has had the assistance of a solicitor for the purpose of his FOI application. He has not explained why he did not need did not seek legal assistance earlier in connection with the Tribunal decision.

11. The applicant also relies upon an application he has made to the Administrative Appeals Tribunal which sets out further details of his complaints about the Department. For similar reasons, I do not accept that that application adequately explains the considerable delay in bringing these proceedings.

12. The applicant has also applied for compensation for the loss that he says he has suffered as a result of the Department’s handling of his visa application and written to various other Ministers for Immigration. None of these matters support his claim for an extension of time.

13. In summary, I conclude that there is no adequate excuse given by the applicant for what is a very considerable delay.

Merits of the application

1. The applicant essentially argues that the Tribunal was wrong to find that he had not applied for a visa within 28 days of the expiry of his last substantive visa. He argues that the 28 days runs from the day on which he was notified of the delegate’s decision. This argument must fail. It confuses the requirement in sub-cl.856.211(2) of sch.2 to the regulations with the time within which an application must be made for review by the Tribunal of a decision of the Minister (or delegate).

2. The former required that the applicant satisfy criteria 3001, 3003 and 3004 of sch.3 to the Regulations. Subclause 3001(1) required that the application (for the visa) be validly made within 28 days after the relevant day (within the meaning of sub-cl. 2). Subclause 3001(2) relevantly provided that the relevant day was the later of the last day when the applicant held a substantive or criminal justice visa and the day when the applicant last entered Australia unlawfully. As the applicant had neither held a criminal justice visa nor entered Australia unlawfully, the relevant day for the purposes of cl.3001 was the last day when the applicant held a substantive visa. As his last substantive visa prior to the visa application expired on 13 November 2006, that was the relevant day. Accordingly, the criterion for the visa required him to have made a valid application for a visa by 11 December 2006.

3. On the other hand, s.347(1) of the Act required an application for review of the delegate’s decision to be made “28 days after the notification of the decision”. This provision clearly has nothing to do with the time within which an application for a visa must be made.

4. As I have noted, and as found by the Tribunal, the applicant made a valid application for a visa on 14 December 2006. That was more than 28 days of the relevant day and, for that reason, the Tribunal was correct to find that the applicant did not satisfy the criterion in cl.826.211 and so affirm the decision of the delegate.

5. One matter not expressly raised by the applicant is whether the Tribunal erred by making a decision in circumstances where the applicant had asked for time to produce a document the Tribunal had asked for. That was some indication from the applicant’s bank that he had been prevented from paying the visa application charge because someone had fraudulently misappropriated the funds in his account.

6. On 24 April 2008 the applicant wrote to the Tribunal saying that the bank’s investigations were still ongoing. The Tribunal had already written its decision and decided to amend those reasons in light of the request for further time. However, it made its decision on 5 May 2008, saying at [47]:

   The Tribunal notes that the decision to reject the visa application was made 24 April 2007. The applicant has been given every opportunity to collate evidence corroborative of his assertions of fraud on the account since that time and he has failed to do so.

7. It is arguable that, acting reasonably, the Tribunal would have given the applicant further time within which to obtain evidence of fraud: see Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332. However, in my view, even if other decision makers, if not most other decision makers would have allowed a little further time, that would not establish jurisdictional error in the Tribunal’s decision. That is because, even if the applicant had been the victim of fraud, the fact remained that he had not paid the visa application charge until 28 December 2006. The relevant criterion allowed for no extension of the time or exceptions to its operation. Thus, even if further time had been allowed by the Tribunal, the result would have been the same and the applicant was not unreasonably denied any opportunity to establish that he met the criterion.

8. For those reasons, although there may be one possible argument available to the applicant, I do not consider that there are reasonable prospects of him succeeding in any substantive application for review of the Tribunal’s decision.

Other matters

1. I have also taken into account the following matters: first, the fact that, pursuant to s.476A(3) of the Act, the applicant does not have any right of appeal from a decision to refuse to grant an extension of time; secondly, the fact that the Minister does not point to any prejudice that might arise from the grant of an extension of time; and thirdly, the Minister’s contention that the applicant holds a permanent visa. I say “contention” because, although this was stated in the Minister’s submissions, I was taken to no evidence that proved it. Even so, the applicant did not deny that he held a permanent visa. In my view, if that is the case, there is little or no utility in these proceedings. A person does not require two visas in order to stay in Australia and the applicant did not point to any particular disadvantage he faces now holding his current visa rather than the visa for which he unsuccessfully applied nine years ago.

2. Taking all of these matters into account, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the period within which to seek relief under s.476 of the Act. It seems that the applicant’s real complaint is that the Department somehow mishandled his file. He has ventilated that complaint in many places over many years. He has little prospect of succeeding in any application and has not adequately explained the delay.

Conclusion

1. The application for an extension of the period within which to make an application for relief under s.476 of the Act is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  21 December 2015