Duarte v Minister for Immigration and Citizenship
[2013] FCA 9
•15 January 2013
FEDERAL COURT OF AUSTRALIA
Duarte v Minister for Immigration and Citizenship [2013] FCA 9
Citation: Duarte v Minister for Immigration and Citizenship [2013] FCA 9 Appeal from: Application for extension of time in which to seek judicial review: Hernan Paredes v Minister for Immigration and Citizenship [2011] AATA 262 Parties: HERNAN ABELARDO PAREDES DUARTE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REGISTRAR OF THE ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 17 of 2013 Judge: NICHOLAS J Date of judgment: 15 January 2013 Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Migration Act 1958 (Cth) ss 476A, 477A(1), 477A(2), 483, 500(6H), 500(6J), 501Cases cited: Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 Date of hearing: 11 January 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 23 Solicitor for the Applicant: Saba El-Hanania Lawyers Solicitor for the First Respondent: DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD17/2013
BETWEEN: HERNAN ABELARDO PAREDES DUARTE
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREGISTRAR OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
15 JANUARY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time in which to file an application for review under s 476A of the Migration Act 1958 (Cth) in respect of the decision of the Administrative Appeals Tribunal made on 19 April 2011 is dismissed.
2.The applicant is to pay the first respondent’s costs in the sum of $2000.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD17/2013
BETWEEN: HERNAN ABELARDO PAREDES DUARTE
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREGISTRAR OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
15 JANUARY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Before me is an application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The application filed by the applicant purports to seek an extension of time within which to lodge a notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). However, it is common ground that the decision about which the applicant complains is a privative clause decision or a purported privative clause decision. Section 483 of the Migration Act 1958 (Cth) (the Act) provides that s 44 of the AAT Act does not apply to such a decision. I have therefore, with the agreement of the parties, treated the application as an application made under s 477A(2) of the Act for an extension of time within which to bring an application under s 476A of the Act.
The Tribunal’s decision was made on 19 April 2011. The application for an extension of time was filed on 10 January 2013, about 20 months after the Tribunal made the decision which the applicant seeks to have reviewed. Pursuant to s 477A(1) of the Act, the applicant was required to file any application for review within 35 days of the decision.
The Tribunal affirmed a decision of the first respondent (the Minister) to cancel the applicant’s visa on the grounds that the applicant did not pass the “character test” prescribed by s 501 of the Act.
The applicant is a male citizen of Chile who arrived in Australia in 1987 when he was 22 years of age. He was granted a K4771 Special Humanitarian Program Visa on arrival. In 1994 he was granted a BF-155 Resident Return Visa. Subsequently the applicant stayed in Australia on a Class BF Transitional (Permanent) Visa granted in 1997. This visa was cancelled by the Minister on 27 January 2011.
Between 1991 and 2010 the applicant was convicted of a number of drug, traffic and property offences. In August 2010 he was sentenced to a term of imprisonment of 16 months. At the time of the Tribunal hearing the applicant was on remand for further offences, but the Tribunal made it clear that it did not take those matters into account in reaching its decision.
It was not disputed by the applicant that he did not pass the character test, and that the principal issue before the Tribunal was whether or not the discretion to cancel his visa should be exercised. Nor was it disputed by the applicant that the Tribunal was required to exercise the discretion in accordance with the requirements of “Direction [No 41] – Visa refusal and cancellation under s 501”.
The Tribunal hearing took place on 4 April 2011. The applicant represented himself. It will be necessary to say more about the conduct of the hearing before the Tribunal later in these reasons because the applicant alleges that he was denied procedural fairness by the Tribunal’s decision to proceed with the hearing on that date and its decision not to receive certain evidence from the applicant’s then partner.
The principles governing the application for an extension of time in which to commence a proceeding for judicial review are well settled and were set out by Wilcox J in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349. In particular, his Honour identified the following principles which should guide the exercise of the discretion when a court is determining whether or not to grant an extension of time:
(a)special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do;
(b)the prescribed period is not to be ignored;
(c)the prima facie rule is that proceedings commenced outside the prescribed period will not be entertained;
(d)the applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
(e)the mere absence of prejudice to the respondent is not enough to justify the grant of an extension;
(f)the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted; and
(g)fairness between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.
The Minister accepts that he will not be prejudiced if an extension of time is granted. Further, the Minister accepts that the impact of the Tribunal’s decision is significant in that it is likely to result in the applicant being deported to Chile. In fact the Minister is proposing to deport the applicant to Chile later this week, though the solicitor who appeared for him indicated that this would not occur if an extension of time was granted until after the proposed proceeding was heard and determined.
The first matter that I must consider concerns the applicant’s explanation for the approximately 19 month delay. The applicant says that he was unable to raise the money needed to obtain legal representation between April 2011 and November 2012 and that this prevented him from filing an application for judicial review within time or an application for an extension of time to do so until early this year. It appears that the applicant was in detention throughout this entire period.
It is apparent from the evidence that the applicant was in contact with his present lawyer concerning various criminal matters in relation to which the lawyer was engaged through much of the latter half of 2011 and the whole of 2012. According to the applicant, he was advised by his lawyer in early 2012 that he would need to raise $2,200 for the purposes of commencing an “appeal” to the Federal Court of Australia, and that this was followed by many months of attempts to raise money from family and friends. He says that in November 2012 he contacted his lawyer and asked the lawyer to act for him on a pro bono basis, and that his lawyer agreed to do so “due to the extended duration of [his] stay in immigration detention”.
However, the evidence called by the Minister indicates that on 17 November 2011 the applicant’s lawyer telephoned the Minister’s solicitor to discuss the Tribunal’s decision. In the course of that conversation the applicant’s lawyer said that it was likely that the applicant would appeal the Minister’s decision. The Minister’s solicitor informed the applicant’s lawyer that the applicant could make an application for review to the Federal Court, that there was a time limit of 35 days, but that there was a provision to apply for an extension of time.
The evidence does not explain why the applicant did not himself take any steps to lodge an “appeal” or, as was required, an application for review of the Tribunal’s decision under s 476A of the Act in a timely fashion. He had initiated the application for administrative review of the Minister’s decision and had, as I have mentioned, appeared for himself at the Tribunal hearing. In the circumstances, I do not consider that the lengthy delay that has occurred has been adequately explained.
The next matter that must be considered concerns the applicant’s prospects of success. In this regard, there were two main arguments advanced by the applicant in support of his proposed proceeding for judicial review. One concerned the failure of the Tribunal to grant the applicant an adjournment of the hearing.
There are two aspects to this argument. The first concerns the Tribunal’s refusal to grant the applicant an adjournment which the applicant made at a directions hearing held about 2 or 3 weeks before the scheduled hearing date. That application was refused. As best I can say on the evidence before me, the Tribunal’s refusal to grant the adjournment was the product of a perfectly reasonable exercise of discretion. It was also argued by the applicant that the Tribunal should not have embarked upon the hearing when it did, and that it should have instead adjourned the hearing for some unspecified time. One difficulty that confronts the applicant here is that he did not make any fresh application for an adjournment of the hearing.
The second of the two arguments relied upon by the applicant concerns the Tribunal’s failure to receive into evidence a written statement said to have been made by the applicant’s then partner. I note that the statement is not in evidence before me, and there was no other evidence of its contents. The applicant’s evidence concerning this statement merely asserted that his former partner, with whom he had previously been in a relationship for about 3 years, told the applicant that she had faxed “submissions” to the Tribunal.
At para 11 of its reasons for decision the Tribunal stated:
Mr Paredes appeared at the hearing unrepresented. He provided a statement, as did his son, Mr Pablo Paredes, which were filed and served in accordance with directions by the Tribunal and s 500(6J) of the Act. Mr Paredes claimed that his partner had faxed a statement to the Tribunal and to the solicitor for the Respondent ‘about two weeks ago’ but nothing was received. Further, Mr Paredes claimed that his partner (who was present at the hearing) had a fax receipt to the effect that the statement had been forwarded as he asserted, but this also was not made available in accordance with s 500(6J). I therefore declined to hear evidence from his partner.
It is apparent that the Tribunal not only declined to receive the former partner’s evidence in support of the applicant’s application for review of the Minister’s decision, but that it may also have declined to receive as evidence a fax receipt which was said by the applicant to show that a statement made by his partner had been forwarded to the Tribunal and to the solicitor for the Minister.
Subsections 500(6H)-(6J) of the Act provide:
(6H) If:
(a) an application is made to the Tribunal for a review of a decision under section 501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
(6J) If:
(a) an application is made to the Tribunal for a review of a decision under section 501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.
I accept that s 500(6J) of the Act prevented the applicant from relying upon a written statement made by his then partner which had not been given to the Minister at least 2 business days before the Tribunal hearing in support of the applicant’s case for administrative review. However, I doubt that s 500(6J) (which relates to documentary evidence) or s 500(6H) (which relates to oral evidence) prevented the applicant from relying upon a document, or calling other evidence, in order to show that a precondition of the kind found in s 500(6J) and s 500(6H) had in fact been complied with.
It seems to me that it is arguable that the Tribunal was in error in refusing to receive evidence to show that a copy of the applicant’s partner’s statement had been given to the Minister in accordance with the requirements of s 500(6J). It is also arguable that the applicant was thereby denied procedural fairness in that he was denied the opportunity of relying upon his partner’s statement notwithstanding that he may have been able to satisfy the Tribunal by documentary or oral evidence that his partner’s statement had in fact been given to the Minister at least 2 business days before the hearing.
There are several considerations that favour the grant of the extension of time sought by the applicant. The decision which he seeks to have reviewed is a very significant one from his point of view. And for reasons which I have explained it seems to me arguable that the applicant was denied procedural fairness as a result of what might ultimately prove to be an erroneous view on the part of the Tribunal as to the true scope of s 500(6J) of the Act. Nevertheless, as I have explained, I do not consider the applicant’s explanation for the lengthy delay to be acceptable. In all the circumstances, I am not satisfied that it is in the interests of the administration of justice to grant the extension of time sought.
The application for an extension of time will be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 15 January 2013
1
2