Charoosaie, F. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 322

IN THE FEDERAL COURT	)
OF AUSTRALIA	1
VICTORIA DISTRICT REGISTRY	)
GENERAL DIVISION	1 VG NO. 100 of 1991 and VG No. 101 of 1991
B E T W E E N :

FERAYDON CHAROOSAIE

Applicant

- a n d -

MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT

AND ETHNIC AFFAIRS

First Respondent

FEDERAL COURT OF	,
AUSTRALIA	JOHN BOOKAR

Second Respondent

MR N. NEARY, THE OFFICER, FROM TIME TO TIME HAVING

THE CUSTODY AND CONTROL OF THE APPLICANT AT THE

IMMIGRATION DETENTION CENTRE, MARIBYRNONG, VICTORIA

Third Respondent

and

THE COMMONWEALTH OF AUSTRALIA

Fourth Respondent

Coram:  Olney J

Place: Melbourne

Date:	24 May 1991
of time is sought.

EX TEMPORE DECISION

This application for an order to review a series of decisions made in respect of the detention in custody of the applicant was not brought within the time prescribed by the Administrative Decisions (Judicial Review) Act, and in the application presently before me an extension

The exercise of the Court's power to extend time is not subject to any legislative criteria, and accordingly I would regard it as being a matter of discretion, but a discretion to be exercised judicially rather than in an arbitrary manner.

Reference has been made to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR

344. That decision, being of a single judge of this

Court, is not binding upon me in the sense that a decision of a Full Court or of a superior court in the hierarchy would be binding upon me, but nevertheless it is a decision that is frequently referred to and has not, so far as I am aware, been dissented from. It has also the added advantage of appearing to be eminently sensible.

I therefore accept that the six factors that Wilcox J enumerated at pages 348 to 49 of the report in the Hunter

Valley case are matters that are relevant to the exercise	of 'my discretion in this particular application. And I
propose to refer to them in order.
It is said that the prima facie rule is that proceedings be commenced within time. I do not think that can be dissented from. Although the section of the AD(JR) Act which permits the extension of time does not place an

onus upon an applicant, there must nevertheless be some reason for extending time. It is said that there must be an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend the time. This really is simply saying that the discretion is a judicial one which must be exercised on a reasoned basis rather than arbitrarily.

In this case the applicant has indicated the reasons for delay essentially have to do with obtaining of legal aid, and also with the difficulty arising from his inability to communicate in the language of his own country. I should say that the only evidence before me is the affidavit evidence that has been filed, and of course the two later affidavits filed today which really do not have any bearing on this particular issue. For the purposes of this application, no question of credibility arises, and I accept the affidavit material on its face value as being factual.

The affidavit material explains the action taken by or on

behalf of the applicant after his arrival in Australia,

and essentially this involved him making an application for refugee status. That application was processed and rejected, or more correctly recommended against, on 6 November. But he was given the opportunity within 21 days of making further submissions which in fact were

made on his behalf just within that time frame.

Subsequently legal aid was obtained and a considerable amount of activity was engaged in in pursuing the applicant's interests.

I do not think it could be fairly said that the applicant rested on his rights, as it were, or that the decision- maker was allowed to believe that the matter was finally concluded, although particularly in the early stages, there does not appear to be any suggestion that the sort of complaint now made was a complaint being made against the authorities who were exercising custody over the applicant. At least in the initial stages, the question of his refugee status was of more importance, and certainly it was the matter that was exercising the time and attention of the authorities.

The question of whether the respondents have been

prejudiced in defending the proceedings by reason of the	delay in bringing them is not a matter upon which I can
reach any conclusion. No assertion has been made on behalf of the respondents that they have been prejudiced and perhaps it is fair to say in those circumstances that there is no evidence of any prejudice.
But by the same token it is well established that the mere absence of prejudice is not enough to justify the grant of an extension. I think prejudice is more a negative factor. If there is significant prejudice to the respondent, that would be a good reason for exercising the discretion against extension of time.
The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. The substantial application in this matter is in effect an application for the applicant to be released from custody pending a decision in respect of his application to be treated as a refugee. There are a number of decisions, I think 10 in all, referred to in the application, all of which are said to have been made on or about dates in the first few days of August 1990.
But at the end of the day, what the applicant wants is to be released from custody until the decision on the
refugee issue has been finally resolved. And I propose to address that issue on the basis of the affidavit
material before me, and again accepting the material on its face value for present purposes. I think it is open on the material presented to conclude that the non- service of the required notice pursuant to S. 89(4) of the Migration Act, which is really at the nub of the claim to be released from custody, is something that the

applicant contrived at. I do not suggest that he was necessarily personally aware of the provisions of the Migration Act, but I believe that what he did he did on advice of some person who was obviously well acquainted with Australian law and procedures.

The fact that he destroyed all evidence that would identify the means whereby he came to Australia and thus, as I accept he intended, deprived the authorities of the opportunity of putting into effect the "turnaround" provisions of the Act, suggests to me that he contemplated that he would be taken into custody upon arrival and not turned' around, which would probably have been the ordinary course of events with an arrival that was unauthorised.

There is, it is conceded, a serious question to be tried as to the effect of the non-service of a notice under

Kirakos v The Minister. At that time the judge expressed	by Gray J in a decision given last October in the case of section 89(4), and that is a matter that was adverted to
the view - I do not think I am putting it too highly - that probably there was no authority to detain under section 89 if a notice had not been served on the airline.
It may be that that conclusion ultimately is not

supported when the matter is finally resolved, but certainly on the face of the legislation there is a serious question to be tried as to the effect that non- compliance with a subsection has in relation to the continued detention of the person seeking to enter Australia.

But in any consideration of the overall merits of the case, it is necessary to take into account all of the features that are relevant in respect of an application of this type, which after all is effectively an application to restrain the authorities from exercising what they claim to be their legal right of detention pending resolution of the matter by the Court.

And just as the element of there being a serious question to be tried is proper to be considered, so also is the balance of convenience. Those are matters that on the merits of the case would have to be argued. They have

before me.	not been argued, but they are addressed in the material
The applicant has already indicated that in the event of his application for refugee status being refused, he will contest that matter. That is not an issue that can be contested in these proceedings. There is material before me that suggests that a decision will be made in respect

to that matter in the near future. And in those circumstances, the whole exercise presently being engaged upon could well be one of some futility.

As I have said, it is a fair conclusion that the applicant contrived to be in a position where he could not be turned around. It must have been within his contemplation that he would be taken into custody, arriving as he did in Australia without any documentation. He seeks the indulgence of the Court in the exercise of the discretions given by Australian law to extend time to permit him to make an application which if successful would effectively enable him to avoid the ordinary consequences of his own conduct in seeking to avoid the ordinary course of legal process under the Migration Act.

In considering the overall merits of the application, it seems to me on a number of different levels that the

on the refugee application, is not one of great merit.	application to be released from custody pending decision
The further factor that Wilcox J referred to was consideration of fairness as between the applicant and other persons otherwise in a like position, and that is a matter relevant to be considered. One can contemplate the situation of someone who has been less devious than to that matter in the near future. And in those circumstances, the whole exercise presently being engaged upon could well be one of some futility.
As I have said, it is a fair conclusion that the applicant contrived to be in a position where he could not be turned around. It must have been within his contemplation that he would be taken into custody, arriving as he did in Australia without any documentation. He seeks the indulgence of the Court in the exercise of the discretions given by Australian law to extend time to permit him to make an application which if successful would effectively enable him to avoid the ordinary consequences of his own conduct in seeking to avoid the ordinary course of legal process under the Migration Act.
In considering the overall merits of the application, it seems to me on a number of different levels that the
on the refugee application, is not one of great merit. application to be released from custody pending decision
The further factor that Wilcox J referred to was consideration of fairness as between the applicant and other persons otherwise in a like position, and that is a matter relevant to be considered. One can contemplate the situation of someone who has been less devious than
the present applicant in respect of whom an appropriate notice under section 89 has been served, who has nevertheless been held in custody pending determination of a refugee application.
In such circumstances the person concerned would have the expectation of remaining in custody until the refugee application is dealt with, and it seems to me that, in the consideration of questions of fairness, it would be quite inappropriate that a person such as the applicant, who has by his own conduct prevented the proper process of law being observed in the manner contemplated by the legislation should be put in a position more advantageous than one who has been less devious.
For all of these reasons, in the exercise of my discretion, I would refuse to extend time.

I certify that this and the

preceding 8 pages are a true copy of the Reasons for Judqment o f the

on our able- Justice Olney

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Dated: l4 . W .91