Galinski, H. v Minister of State for Immigration, Local Government and Ethnic Affairs

[1994] FCA 271

HARALD GALINSKI v. MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND
ETHNIC AFFAIRS
No. WAG156 of 1993
FED No. 271/94
Number of pages - 5
Administrative Law
(1994) 33 ALD 757 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
FRENCH J

CATCHWORDS

Administrative Law - judicial review - extension of time - refusal of temporary entry permit - delay in bringing application - no adequate explanation for delay - application dismissed.

Migration Regulations (1992)
Administrative Decisions (Judicial Review) Act 1977

HEARING

PERTH, 25 February 1994
#DATE 2:3:1994

Counsel for the Applicant: Mr S. Walker

Solicitors for the Applicant: Stephen Alex Walker

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The application is dismissed.

2. The application to pay the respondent's costs of the

application.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

FRENCH J Harald Galinski is a citizen of the Federal Republic of Germany. He arrived in Australia in or about August 1989 when he was granted a temporary entry permit, valid for 12 months. The permit under which he entered this country was granted on the application of a German company, Tarifa Sails, which claimed to be setting up a branch in Western Australia to develop and test sails for windsurfers. An Australian company, Tarifa Sails Pty Ltd, was incorporated to operate the branch.

1. In or about May 1990, Galinski, who was chairman and marketing manager of Tarifa Sails Pty Ltd, returned to Germany for a time. In September 1990, he re-entered Australia and was issued with a temporary entry permit as a Temporary Resident under Class 413 of the Migration Regulations (1992). The permit was for a further two year period expiring 5 October 1992. On or about 27 July 1992, Galinski lodged an application seeking the grant of a further temporary entry permit. The Department of Immigration, Local Government and Ethnic Affairs sought information concerning the operations of Tarifa Sails Pty Ltd. On 28 August 1992, Galinski wrote to the Department advising that the business of the company had commenced "in a very positive manner". However, upon a further assessment of the potential export market, the costs of manufacturing and harsh trading conditions, it was said it was not considered prudent to manufacture and export in the volume originally anticipated. He wrote:
   

"The operational structure was therefore scaled down

considerably, in order to minimise future losses,

concentrating on local markets only until a more

suitable situation existed."

1. Reference was made in the letter to the purchase by Galinski of Ardmore Properties Pty Ltd trading as W.A. Windsurfing Dangerzone, which operated two windsurfing/surfing retail shops in Western Australia. Galinski indicated in the letter that no staff was employed by Tarifa Sails Pty Ltd until March 1992. Some staff had been employed on a part-time basis thereafter and an additional two fulltime and two part-time staff would be required by October 1992.

2. On 15 July 1993, it was decided to refuse the application. The decisionmaker, Maria Bradford, referred in reasons for her decision to the Migration Regulations (1992) and, in particular, to reg.125 which set out prescribed criteria for the grant of a Temporary Entry Permit to lawful Temporary Residents. Certain criteria applicable to the grant of a Visa, Class 413 were imported into the criteria regulating the grant of an Entry Permit. She was not satisfied that the prescribed criteria had been met and relied in particular upon evidence in a letter of 14 January 1993 in which Tarifa Sails had informed the Department that for the financial years 1990/91 and 1991/92, Galinski had received a remuneration well below the tax free threshold and that no salary or wages were paid during the financial year ending 30 June 1991.

3. Ms Bradford prepared a letter dated 15 July 1993 and addressed to Galinski in which she advised him of the refusal of the entry permit and of the fact that he was thenceforth an illegal entrant and must make arrangements to leave Australia. Galinski, however, says he did not receive a copy of this letter nor a copy of the decision record which accompanied it. He says that the first he knew of the decision was when he received a visit from officers of the Department on or about Friday, 20 August 1993. He was told that he should make arrangements to leave Australia within seven days. He knew nothing about any review rights or time limits within which he could seek review. He says that he made strenuous efforts to complain about what he perceived as the injustice of the situation and to avoid being compelled to leave Australia. He made representations in Melbourne to various government offices and ultimately, he said, the Department accepted that he should be taken to have been notified of the refusal decision only on 20 August 1993.

4. On 13 September 1993, Galinski lodged an application for permanent resident status based upon his de facto relationship with an Australian citizen. He said that prior to 13 September 1993, his solicitor, Mr Newell, had been told by an officer of the Department that he, Galinski, was entitled to lodge an application for permanent resident status. A similar assurance, he says, was received on his behalf by an officer of the Commonwealth Ombudsman in Melbourne when she made a similar inquiry. Galinski says that it was on the basis of those representations that he did not seek review of the refusal of the application for a further temporary entry permit. Otherwise he would have proceeded to seek such review within 28 days from 20 August 1993. His application for permanent resident status was refused on the basis that as an illegal entrant he was not entitled to make a second application. In a letter dated 25 October 1993, an officer of the Department wrote to Galinski saying:
   

"On 19 December 1989, the Migration Act was amended to limit the number of entry permit applications that

could be made by an illegal entrant. Section 37 of

the Act states that illegal entrants in Australia who have been refused an entry permit may only make

another application for an entry permit if there has been a prescribed change in their circumstances since their last application. Such prescribed changes of

circumstances are set down in regulation 2.10 of the Migration Regulations.

As you are an illegal entrant and you do not appear to have experienced a prescribed change in your

circumstances, you are not entitled to make an entry permit application."

1. Galinski's solicitors wrote letters complaining about the unfairness of this decision given the representations which, it was claimed, had been made by officers of the Department. On 29 October 1993, Galinski's solicitor was advised that he would be required to leave Australia as he was an illegal entrant. Galinski made further representations and complaints. He says that he was successful in being granted further time in Australia to allow him to spend time with his parents who had already booked and paid for a long-planned holiday here. He was then advised that he would be required to leave Australia by 23 December 1993. Subsequently, Galinski applied to the Legal Aid Commission for a grant of legal assistance to seek judicial review of the refusal of the additional temporary entry permit. He saw his present solicitor, Mr Walker, under a legal aid assignment for the first time on 30 November 1993. Mr Walker told him that it was then necessary for him to consider the papers in some detail and decide what if any legal action could be taken. In the event, an application for review of the decision of 15 July 1993 was filed in this Court on 22 December 1993. Galinski seeks an extension of time to enable him to bring the application.

2. Also before the Court in relation to the question of extension of time was an affidavit of Peter David Sucksmith, an officer of the Department of Immigration and Ethnic Affairs, who had visited Galinski at his home on 20 August 1993 and had subsequently spoken with him by telephone on 24 August 1993 and to Galinski's former solicitor by telephone on 30 August 1993. Sucksmith says that at no time did he make any comment on Galinski's eligibility to make an application for permanent resident status on the grounds of a de facto relationship with an Australian citizen. In relation to the operation of the company, Tarifa Sails Pty Ltd, Sucksmith says that as at 17 August 1993 the premises of Tarifa Sails Pty Ltd at 12 Queensgate Centre, William Street, Fremantle were not occupied. The shop was empty of all fixtures and fittings and was not trading.

3. Sucksmith exhibited various departmental memoranda and letters to his affidavit. Following the refusal of the application for permanent resident status it appears that the main thrust of communication between Galinski and the Department related to his attempts to negotiate an extension of the time within which he would be required to leave Australia so that he could accommodate prior arrangements made by his mother, father and brother to visit Australia on 10 November 1993. A letter of 5 November 1993 referred to an agreement made with Ms Janet Mackin of the Department that he would be allowed to stay in Australia but must make and show proof of arrangements to leave before Christmas 1993. On 8 November 1993, Galinski wrote to the Department advising that he had paid for a ticket on a flight leaving Australia for Germany on 23 December 1993. He faxed a copy of the flight confirmation as well as a receipt for full payment made to the Fremantle Flight Centre. On 13 December 1993, he sent a further letter to Ms Mackin asking that he be allowed to depart from Australia with his parents on 24 January 1994. To leave them by themselves in Australia during the Christmas season, he said, would be very detrimental to them. Neither spoke any English and his mother was in poor health. On 13 December 1993, Ms Mackin wrote to Galinski noting that she had agreed to him staying in Australia until his parents arrived here and noting his production of evidence of purchase of a ticket for a flight leaving Australia on 23 December 1993. She noted that Galinski would have been aware at the time he agreed to depart from Australia that due to heavy airline bookings there was a possibility that his parents might not be able to secure return flights to Germany before Christmas. She also noted that he was already aware of his mother's poor health. She said therefore that she was unable to approve Galinski's request for any further stay in Australia and expected that he would depart, as agreed, on 23 December 1993. Galinski wrote to the Minister for Immigration on 14 December 1993 renewing his application for permission to stay in Australia until 24 January. In the event he did not depart Australia from Perth Airport on the scheduled flight for which he claimed to have purchased a ticket. There was evidence in Mr Sucksmith's affidavit, albeit based on secondhand advice, that British Airways had confirmed that Galinski never held a booking on the flight in question.

4. In support of his application for an extension of time within which to bring an application under the Administrative Decisions (Judicial Review) Act 1977, Galinski first referred to his explanation for the delay in bringing the application. He referred to the alleged advice given to his solicitor and the Commonwealth Ombudsman that he was eligible to apply for resident status on the grounds of a de facto relationship with an Australian citizen. And it was on the basis of that advice that he says he did not seek a review of the refusal of the application for a further temporary entry permit within 28 days of being notified of it on 20 August 1993. He says he could have sought review either by applying to the Migration Internal Review Office or pursuant to the Administrative Decisions (Judicial Review) Act 1977. After referring to the subsequent history of communication with the Department, he says that he has not rested on his rights and that the Minister has not claimed any prejudice arising from the delay. The delay, in any event, he said, was neither reprehensible nor excessive. The submissions then went on to make reference to the merits of his case.

5. Prima facie an application for an order of review must be brought within the time limited by the Administrative Decisions (Judicial Review) Act 1977. The Court will not routinely extend time. The question of the ineligibility to apply for a permanent entry permit was a matter which could have been identified by reference to the relevant provisions of the Act and Regulations. Galinski was legally represented at the relevant time. It is curious that there is no affidavit from his former solicitor to give direct evidence of the advice upon which he claimed he relied and which is critical to the explanation for the delay in proceeding with the application to obtain an order for review of the refusal of the further temporary entry permit. Nor was there an explanation for the absence of such an affidavit. There was no direct evidence from the office of the Commonwealth Ombudsman to whom a similar representation was said to have been made by the Department. In my opinion, the representations said to have been made by the Department to these people are pivotal to Galinski's case for an extension of time. His report of the representations is secondhand and of a vague generality. Certainly, so far as Mr Sucksmith is concerned, the direct evidence is that no such representation was made.

6. In my opinion, the evidence does not establish a proper explanation for the delay in seeking review of the decision complained of. Indeed the timing of the application which was filed on the day prior to the day that Galinski was supposed to leave Australia rather suggests that it was a last throw of the dice in his fight to remain within Australia. In the circumstances I am not satisfied that the grounds for the application have been made out, and the application will be dismissed.