Guo and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 729
•9 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 729
ADMINISTRATIVE APPEALS TRIBUNAL )
NoN2003/117 and N1996/1409
GENERAL ADMINISTRATIVE DIVISION ) Re Guo, Qi Guang Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date9 July 2004
PlaceSydney
Decision (1) The Tribunal refuses the Applicant’s application made pursuant to s
42A(10) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) to reinstate his application to the Tribunal dated 22 November 1996 for the review of a decision dated 25 October 1996 refusing him a visa to remain in Australia.
(2) The Tribunal also refuses the Applicant’s alternative application made
under s 29(7) of the AAT Act for an extension of time for the making of a second application for the review of the decision dated 25 October 1996.
..............................................
RP Handley
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for reinstatement of application for review – application for extension of time – Applicant’s application dismissed for failure to appear – whether Tribunal has jurisdiction to reinstate application – application for reinstatement not made within 28 days of dismissal – whether application for review dismissed in error – Applicant subsequently lodged fresh application for review of same reviewable decision – whether Tribunal has jurisdiction to consider and decide the fresh application for review – whether it would be appropriate to grant an extension of time for lodging fresh application for review – examination of the reasons why the Applicant failed to appear at the AAT hearing – held that the Applicant failed to appear through circumstances of his own making and that there was no administrative error by the Tribunal – examination of the six propositions as to why an extension of time should be granted – held that it is not appropriate for an extension of time to be granted – the application to reinstate and the application for an extension of time are refused by the Tribunal.
Administrative Appeals Tribunal Act 1975 ss 29(7), 29(8), 42A(2), 42A(8), 42A(10)
Acts Interpretation Act 1901 ss 15AA, 15AB
Crimes Act 1900 s 527C(1)(a)
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385
Brown v Federal Commissioner of Taxation (1999) 42 ATR 118
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Re Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513
REASONS FOR DECISION
9 July 2004 Mr RP Handley, Deputy President Summary
1. The Applicant, Guo Qi Guong, who is a citizen of China, aged 47, made an application, pursuant to s 42A(10) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) for a reinstatement of an application for review which was dismissed by the Tribunal on 3 November 1997 pursuant to s 42A(2) of the AAT Act. The Applicant has, in the alternative, made an application pursuant to s 29(7) of the AAT Act for an extension of time for lodging a fresh application for review. These are the preliminary questions to be determined by the Tribunal.
Background
2. The Applicant, Mr Guo, was born in Guangzhou City, China, on 28 April 1957 and is aged 47. On 11 February 1998, he married Shi Wei (date of birth 20 February 1965) with whom he has two children, Charlie (Guo Jia Ning), who was born on 25 December 1988 and is aged 15, and William (Guo Kwai Sang) who was born on 21 April 1993 and is aged 11. Mr Guo is a citizen of the People’s Republic of China.
3. Mr Guo arrived in Australia on 5 August 1988 on a student visa valid for six months. On 14 December 1989, he applied for a grant of resident status. On 30 June 1994, Mr Guo applied for a Class 815 (permanent) entry visa. On 1 September 1994, the Migration Reform (Transitional Provisions) Regulations 1994 (“the TRs”) were introduced. Regulation 23 of the TRs provided that an application for a Class 815 (permanent) entry visa not determined by 1 September 1994 became an application for a transitional (permanent) visa and would be decided according to the criteria applied to a Class 815 (permanent) entry permit. As Mr Guo’s application was not determined by 1 September 1994, it automatically became an application for a transitional (permanent) visa.
4. On 25 October 1996, a delegate of the then Department of Immigration and Multicultural Affairs, decided to refuse Mr Guo’s application because of Mr Guo’s past criminal activities, his noted pattern of deceptive conduct over a number of years, his association with persons or groups involved in criminal conduct, and because on the balance of the evidence before the delegate, it was considered likely that Mr Guo would engage in criminal conduct if allowed to remain in Australia, thereby representing a danger to the Australian community. Mr Guo was advised of this decision by letter dated 25 October 1996, sent by registered mail.
5. On 22 November 1996, Mr Guo’s then solicitors, Blessington Judd, lodged an application for a review of this decision with the Tribunal, stating that Mr Guo received the decision on 29 October 1996. Between October 1996 and September 1997, Mr Guo’s solicitors continued to advance his application towards a Tribunal hearing which had been listed for 3 November 1997. By letter dated 17 October 1997, Mr Rutland Cheung of Blessington Judd sought an adjournment of the hearing, but without providing reasons for such a request. On 24 October 1997, following a Directions Hearing, Deputy President Dr D Chappell directed that the Applicant was to file and serve on the Tribunal “adequate reasons explaining why he is unable to proceed with his application at this point, and why the matter should not be dismissed pursuant to s 42A(5) of the Administrative AppealsTribunal Act 1975”. By letter dated 31 October 1997, Mr Cheung informed the Tribunal that he had been unable to contact his client to obtain instructions and accordingly the firm was no longer in a position to act for the Applicant and would not be making an appearance on 3 November 1997.
6. On 3 November 1997, Deputy President Chappell made a Direction dismissing Mr Guo’s application pursuant to s 42A(8) of the AAT Act (this was a mistake and should have read s 42A(2)) without the Tribunal proceeding to review the decision, and informing the Applicant that under s 42A(8) he had 28 days after receiving the notice to apply for a reinstatement of the application.
7. On 12 December 2001, Mr Guo was arrested when a search was made of the house where he and his family were living and stolen jewellery and a large sum in cash were located. Mr Guo was detained in Villawood Immigration Detention Centre until 29 April 2002 when he was charged with having in his custody property (gold jewellery worth $137,400 and $769,300 in cash) “reasonably suspected of being stolen or otherwise unlawfully obtained”, and then bailed and released on a criminal justice visa current until July 2004.
8. On 17 January 2003, Mr Guo’s current solicitors, Ren Zhou Lawyers, lodged two applications with the Tribunal, being an application to reinstate matter No N1996/1407, the matter dismissed by Deputy President Chappell, and an application for an extension of time to lodge a fresh application for review. Ren Zhou Lawyers submitted that: Mr Guo had not in fact received notification of the hearing and had been denied natural justice; non-contact does not necessarily lead to a conclusion of abandonment of an action; there was no consideration of the best interests of Mr Guo’s children; and no consideration was given to hearing the matter in the absence of Mr Guo. Ren Zhou Lawyers also submitted that Mr Guo’s non-willingness to appear at the Tribunal hearing was caused through his wishing to avoid arrest for charges which he denies having committed.
9. By letter dated 11 February 2003, the legal representative for the Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, notified the Tribunal that it opposed Mr Guo’s applications for reinstatement of the application for review and for an extension of time to lodge an application for review.
10. On 29 April 2004, Mr Guo was convicted under s 527C(1)(a) of the Crimes Act1900 (NSW) of having property (the gold jewellery) in his possession reasonably suspected of being stolen or otherwise unlawfully obtained. On 7 June 2004, he was sentenced to a period of imprisonment of five months and 15 days, being the total of the time that Mr Guo had previously spent in immigration detention. Mr Guo was therefore released following sentencing. The charge in respect of the large sum of cash was withdrawn.
11. At the hearing, the Applicant was represented by Leonard Karp, of Counsel, with Barry Murphy, co-Counsel, and the Respondent was represented by Sharon Hanstein, Solicitor, of Blake Dawson Waldron, Solicitors. Mr Guo and his friend Edmund Wu gave oral evidence.
Relevant Legislation
12. Subsection 29(7) of the AAT Act empowers the Tribunal, upon application in writing by a person, to extend the time (otherwise prescribed by that section) for the making by that person of an application to the Tribunal for review of a decision. Subsection 29(8) provides that the time for making such an application for review may be extended under subsection (7) although that time has expired.
13. Section 42A of the AAT Act relevantly provides:
...
(2) 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 a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or 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; or
(b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding.
...
(6) If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.
...
(8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
Evidence
Mr Guo
14. Mr Guo said he first arrived in Australia in August 1988 on a student visa valid for six months. On the expiry of this visa, he applied for a further visa through a migration agent who told him to await a decision which does not appear to have eventuated. Mr Guo acknowledged that he did not have a valid visa between the expiry of his student visa and his application for resident status in December 1989. After the Tiananmen Square massacre in 1989, he was granted a temporary protection visa. In 1994, he applied for a Class 815 visa which was refused in 1996 on the ground that he is not of good character.
15. Mr Guo said he met his wife in China in 1986. They were married in February 1988. His wife did not accompany him to Australia in August 1988. She first came to Australia with their older son, Charlie, in 1992, but returned to China with Charlie, to have their second child, William, in 1993. She and Charlie returned to Australia about a year after William was born. William remained in China with his wife’s parents and did not come to Australia until October 2000 by which time he had attended Year 1 of primary school. Mr Guo said he and his wife have never separated or divorced.
16. Mr Guo acknowledged that he is not of good character because, in 1994, he tried to use a false passport to return to China to see his father who was dying. Mr Guo said he also has a gambling habit for which he has been punished. He denied ever having been involved in the sale of illegal drugs.
17. In his affidavit dated 16 January 2003 (A1), Mr Guo said he retained Mr Cheung of Blessington Judd, Solicitors, in 1994 when Mr Guo was charged with supplying heroin, a charge subsequently dropped in July 1994. Mr Guo continued to retain Mr Cheung as his solicitor. In late October or November 1996, Mr Cheung told him that the Department had decided he was not of good character and had refused his visa application and offered to take responsibility for appealing that decision. Mr Cheung said he would charge Mr Guo the $20,000 he still held for Mr Guo. Mr Guo accepted this offer.
18. In about May 1997, Mr Guo met with Mr Cheung who told him that the money retained on account of costs had run out and Mr Guo owed a further $5,000. When reminded of their previous agreement, Mr Cheung agreed to waive the further $5,000 but said that a further $20,000 would be required for fees for a barrister to represent him at the hearing. When Mr Guo told Mr Cheung he had no money, Mr Cheung said Mr Guo would have to find some.
19. Mr Guo said that after this meeting, he avoided Mr Cheung. He did not attempt to find another lawyer. He did not really understand the legal proceedings and his English was very poor. Moreover, he became aware that the police were watching him and so decided to “get out of it for a while” and not draw attention to himself. He moved from his house in Ashfield, first to a friend’s house and then to Melbourne, where he stayed from September 1987 to about February 1998, living at one address. He did not tell Mr Cheung where he was. On the few occasions Mr Cheung’s calls reached him, he did not return these. Sometimes Mr Cheung left messages with Mr Guo’s wife and sometimes with his friend Eddie Wu who would also leave messages with Mr Guo’s wife. It was always Mr Guo who contacted Mr Wu because Mr Guo did not have a permanent telephone number.
20. Although Mr Guo knew he would have to attend the Tribunal for a hearing, neither Mr Cheung nor Mr Wu told him of the hearing on 3 November 1997. Later, Mr Wu did tell Mr Guo’s wife that Mr Guo did not have a visa and said she should go and see Mr Cheung about this. Mr Guo was aware that Mr Wu was friends with Mr Cheung and that Mr Wu saw him regularly over legal matters Mr Cheung was handling for him. Mr Guo acknowledged that Mr Wu knew the details of his case and that he was avoiding Mr Cheung, but Mr Guo never instructed Mr Wu to do anything on his behalf.
21. Mr Guo said it was not until March or April 1998 that he learned of the Tribunal’s decision to dismiss his application as a result of his wife going to see Mr Cheung. Mr Cheung would not release his file to Mr Guo’s wife because he said Mr Guo owed him money. Mr Guo thought he would wait some time and then find another lawyer. He did not make any serious attempt to find one. He needed to save some money for this purpose and he also hoped that after a while “things might settle down”.
22. Mr Guo said between April 1998 and late 2001 he and his family lived at four or five different addresses in Sydney. They usually had to move because the children were noisy and the landlord forced them out. He did not seek to hide from the police or the Department of Immigration during this period but they did not bother him. He assumed that because his family were permanently here he could also stay.
23. Mr Guo said he had a gambling problem. It is no longer serious. He does not go to gambling premises any more and now only occasionally plays the poker machines. In 1995, a person borrowed a substantial sum from Mr Guo, lost it gambling and then disappeared. In late 2001, Mr Guo met him by chance in a Health Centre which provides therapeutic massage to customers. This is a legal centre which does not provide sex. Mr Guo was there because he has back problems. The person who owed him the money was selling jewellery to staff at the Centre. Mr Guo asked for his money back and asked to keep the jewellery until the man paid Mr Guo what he owed.
24. Mr Guo said he did not know what the jewellery was worth and made no attempt to sell it. A short while later, the police searched the house in Coogee where he and his family were living and found the jewellery and a large sum of money. The magistrate who convicted Mr Guo on the charge of being in possession of the jewellery accepted that Mr Guo did not know the jewellery was stolen at the time it came into his possession, although he realised this later. Mr Guo said he has not committed any crime since December 2001 and will not do so again in the future.
25. Mr Guo said on 12 December 2001 his wife was charged with having an illegal drug in her possession – 520 ecstasy tablets. She was arrested and detained by the police at the same time that he was detained by officers of the Department of Immigration. The Department of Community Services (“DOCs”) took the two boys into care but, after two or three months they ran away from their carer. Mr Guo phoned his sister in England to ask for her help. She flew to Australia. They advertised for the boys in the newspaper. About one to two months after running away, the boys saw the advertisement and got in touch with their Auntie. They then stayed with her until his wife was bailed in about April 2002. Subsequently, in about May 2003, she was convicted of the drugs charge and sentenced to six months imprisonment. She was released from prison in November 2003.
26. Mr Guo said it was only when he was detained in December 2001 that he found out how serious his situation was. He asked around among those he knew for the name of a solicitor, and one of his friends introduced him to a solicitor called Selina. She asked him to sign a visa application and when that was not successful, she got him to sign another application. After his release from detention, Mr Guo’s solicitors approached Mr Karp – towards the end of June 2002. Mr Karp said he took responsibility for the delay between then and 17 January 2003, when Mr Guo’s application was lodged with the Tribunal. During this period, they were trying to finalise Mr Guo’s outstanding criminal matter which ultimately did not happen.
27. Mr Guo was asked about an incident in July 2003 when his house was searched by the police. He said the police kicked in the door of his house at about 2 am in the morning. He had gone out between 9pm and 10pm to meet a friend, leaving the boys to go to bed. He does this sometimes. The boys were asleep when the police entered. The police got in touch with one of his friends who contacted Mr Guo who collected the boys at 5am. Mr Guo said the boys were not taken into care by DOCs with whom he has had no involvement since May 2002. The boys have never been questioned by the police in relation to any criminal offence.
28. Mr Guo said he loves his children very much. He does not communicate nor teach them very well but they all live together. He cannot use strict Chinese discipline with them. They did not tell him why they ran away from the DOCs carer. They have never run away from him and his wife. They would miss him if he had to return to China. His wife and older son, Charlie, are Australian citizens, and his younger son, William is a permanent resident. Charlie has lived in Australia for 12 years since the age of three; William for four years since the age of seven. They can speak but cannot read Chinese. If Mr Guo has to return to China, his wife and children will probably remain in Australia.
29. Mr Guo said he has been in Australia for 16 years and no longer has any relatives in China. His father and brother have died. His mother and younger sister live in England; his other sister in Hong Kong. Mr Guo said he does not own any property or assets in Australia. He has no savings and has not had a bank account since 1996. He does not have a work permit and so is not working. He has an investment as a result of an agreement whereby he acts as an agent for some companies, earning commission. He and his family have just moved to a house in Strathfield.
Edmund Wu
30. Mr Wu is a manager who lives in Chatswood. He has known Mr Guo since early 1995 and regards him as a friend. Mr Wu confirmed that he had contact with Mr Cheung of Blessington Judd, Solicitors, at Chatswood, over real estate and immigration matters in 1997/1998. For the period mid-1997 to February 1998, Mr Wu could not recall how often he was in touch with Mr Cheung but said it was not as frequently as once a week.
31. Mr Wu could not recall his phoning Mr Guo although he did recall Mr Guo phoning him and saying that he was in Melbourne. Generally, their contact during this period occurred when Mr Guo phoned him. Mr Guo could not remember having ever tried to contact Mr Guo by leaving a message with his wife. Although Mr Wu has known Mr Guo’s wife since about 1994/1995, he does not know her very well.
32. Mr Wu remembered that on one occasion Mr Cheung asked him where Mr Guo was and said that he had been trying to contact Mr Guo. Mr Wu responded that he also did not know where Mr Guo was or how to contact him. Mr Wu could not recall speaking to either Mr Cheung or Mr Guo about any aspect of Mr Guo’s case, including his AAT hearing, but Mr Wu said it was too long ago and he cannot be sure.
33. Mr Wu said he does not know where Mr Guo or his wife are living at the moment or whether they have separated.
Discussion
34. The first issue for the Tribunal to determine is whether Mr Guo’s application for review should be reinstated pursuant to s 42A(10) of the AAT Act. Mr Karp, for the Applicant, did not seek to rely on s 42A(8). Section 42A(10) confers a discretionary power to reinstate an application “if it appears to the Tribunal that an application has been dismissed in error”. The subsection does not, however, explain what kind of error might attract its operation.
35. Subsections 42A(8), (9) and (10) were discussed by the Full Federal Court in Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 at 389-390:
25 The three provisions which we have set out in para 23 above were inserted into the AAT Act in 1993 by the Administrative Appeals Tribunal Amendment Act 1993 (Cth). As was made plain by the Attorney-General at the time (see, for example, p 2 of the Senate explanatory memorandum for the bill which became the 1993 Act), most of the provisions to be inserted by the amending Act (including the ones presently under discussion) were being enacted in order to give effect to the recommendations of the Report of the Review of the Administrative Appeals Tribunal, which report had been presented to both the Attorney-General and the president of the tribunal in November 1991.
26 In that Report, what became s 42A(8) and (9) had been dealt with together and what became s 42A(10) had been dealt with separately.
27 As to what became s 42A(8) and (9), the report had identified as a problem (see App 9, Proposal 28) the following: "An application which has been dismissed for failure to appear cannot at present be reinstated although such failure is found to be excusable". Its proposed amendments to overcome that problem had been to provide (relevantly): first, that "the applicant may apply to the tribunal within 28 days of receipt of notification of dismissal for a direction that the dismissal be vacated"; and, second, that "if the tribunal is satisfied it is appropriate to do so, it may so direct".
28 As to what became s 42A(10), the report had identified as a problem (see App 9, proposal 29) the following:
The amendment proposed by Proposal 28 would deal with the situation of vacation of a dismissal after failure to appear, and that failure is later found to have been excusable. There remains a need, both generally and if Proposal 23 [which was that an applicant be permitted to `discontinue' an application in writing] be enacted, for there to be a power to vacate a dismissal where the application has been dismissed by administrative error on the part of the AAT.
In other words, the problem identified was the absence of a "slip" rule. The report's proposed amendment to overcome that problem had been to provide that "the tribunal may vacate the dismissal of any application for review where such dismissal has occurred through administrative error on the part of the tribunal".
29 The Senate explanatory memorandum for the bill which became the 1993 Act, in explaining the clause which became, without debate or amendment, s 42A(10), adopted (at p 11) the language which had been used in the report, saying that the clause provided for the tribunal "to reinstate an application which has been dismissed through administrative error on the part of the tribunal".
36. In ReGoldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513, at paragraphs 41 to 43, Deputy President Hotop quoted the above extract from Brehoi (supra) and went on to consider the use of a purposive approach (s 15AA Acts Interpretation Act 1901) in ascertaining the meaning of the words “in error”, including by reference to extrinsic material (s 15AB):
42 As the Full Federal Court noted in Brehoi (above), the Senate Explanatory Memorandum relating to the Bill which subsequently became the Administrative Appeals Tribunal Amendment Act 1993, whereby s 42A(10) was inserted into the AAT Act, indicated (at p11, para 56) that the purpose or object of that provision was to authorise the Tribunal to “reinstate an application which has been dismissed through administrative error on the part of the Tribunal”. There was no suggestion that s 42A(10) was intended by the legislature to provide a means of correction by the Tribunal of errors of law made by it in dismissing an application for review.
43Having regard to the purpose or object for which s 42A(10) was inserted into the AAT Act, as indicated in the abovementioned Senate Explanatory Memorandum, that provision must, in accordance with s 15AA of the AI Act, be construed in such a way as to promote that purpose or object. The appropriate construction of s 42A(10) is, therefore, that the Tribunal’s power to reinstate an application for review pursuant to that subsection is enlivened only where it appears to the Tribunal that the relevant application has been dismissed by reason of administrative error on the part of the Tribunal.
37. The Tribunal agrees with Deputy President Hotop’s construction that s 42A(10) is only enlivened where the relevant application has been dismissed by reason of administrative error on the part of the Tribunal. Mr Karp referred the Tribunal to the High Court decision in Minister for Immigration and MulticulturalAffairs v Bhardwaj (2002) 209 CLR 597, at paragraph 14, where Gleeson CJ recognised that failure by a tribunal to follow its procedure, thereby denying the respondent the opportunity to be heard on an issue, amounted to an administrative error.
38. The Applicant submitted that there was such an error in this case, in so far as Mr Guo was denied natural justice. The Respondent disagreed.
39. The Tribunal finds that at the relevant time in October/November 1997, Mr Guo’s solicitor, Mr Cheung of Blessington Judd, still had authority to act on behalf of Mr Guo, notwithstanding Mr Guo’s evidence that he had been avoiding contact with Mr Cheung since about May 1997. Mr Guo had also decided to “lie low” because he thought he was being watched by the police. He therefore moved house and between September 1997 and February 1998 was living in Melbourne, away from his family who remained in Sydney. He did not tell Mr Cheung where he was. Mr Guo said on the few occasions Mr Cheung’s calls reached him, he did not return them. Sometimes Mr Cheung left messages with Mr Guo’s wife; sometimes with his friend Mr Wu. It was always Mr Guo who contacted Mr Wu because Mr Wu did not have a contact telephone number for Mr Guo in Melbourne.
40. Mr Guo said although he knew he would have to attend the Tribunal for a hearing, neither Mr Cheung nor Mr Wu ever told him of the hearing on 3 November 1997. In the Tribunal’s opinion, Mr Guo’s conduct indicates recklessness as to the ongoing proceedings: he did not return Mr Cheung’s calls and took no other steps to inform himself as to the state of the Tribunal proceedings. It was only in March/April 1998, following a message from Mr Wu to Mr Guo’s wife, and her going to see Mr Cheung, that Mr Guo learned that his application to the Tribunal had been dismissed.
41. Deputy President Chappell dismissed Mr Guo’s application on 3 November 1997 when Mr Guo failed to appear at the hearing. Mr Guo’s solicitors had been in contact with the Tribunal by phone on 17 October 1997 and followed this up with a letter to the Tribunal of the same date. This letter, from Mr Cheung of Blessington Judd, states:
I confirm I have been instructed to seek an adjournment of the hearing listed to commence on 3rd November 1997.
My instructions were received from Mr Eddy Wu who came to our office in the afternoon of 16 October 1997. Mr Wu advised me that he has received a message to pass on to me that Mr Guo intends to pursue his case vigorously but regrets he cannot attend on 3 November 1997. I was instructed to seek an adjournment.
Mr Wu unfortunately could not advise me the reasons for the adjournment. I asked Mr Wu whether Mr Guo was sick or what but I have not been able to get further information. I am unable to contact Mr Guo presently.
The situation is, I must accept, most unsatisfactory. I can understand if DIMA would wish to object to an adjournment. The grounds that I can advance at this stage in support of the adjournment being:
a. Prejudice to DIMA arising from an adjournment is not such that will affect the evidence or case of DIMA or in any way put DIMA at a disadvantage; and
b. Public Interest ground. It is in the public interest that every person should be given the opportunity to be heard and to defend any adverse decision of the Government against them.
If acceptable to DIMA, I would propose orders be made that the hearing dates be vacated and a directions hearing date be set to review the readiness of the parties to have new hearing dates set.
42. This letter suggests Mr Guo was aware of the hearing. Following receipt of the letter, the Tribunal arranged a Directions Hearing on 24 October 1997. At the hearing, attended by Mr Cheung, Deputy President Chappell directed that
the applicant file and serve, by close of business Friday 31 October 1997, adequate reasons explaining why he is unable to proceed with his application at this point, and why the matter should not be dismissed under s 42A(5) of the Administrative Appeals Tribunal 1975.
43. By letter dated 31 October 1997, faxed to the Tribunal on that date, Mr Cheung of Blessington Judd stated:
I refer to my appearance on 24 October 1997 and the Orders of Deputy President Chappell dated 24 October 1997.
I have not been able to contact our client for instructions and therefore the directions of Deputy President Chappell can not be complied with.
In the circumstances, much as we would like to assist Mr Guo we have been placed in an untenable position. I must therefore advise the Tribunal our firm can no longer continue to act in this matter and will not be making any appearance on 3rd November 1997.
44. When there was no appearance by Mr Guo on 3 November 1997, Deputy President Chappell made the following Direction:
The Tribunal:
1. being satisfied that the applicant has failed to appear at the hearing of his proceeding for review, and
2. that the applicant was given appropriate notice of the time and place of the hearing, as required by s 42A(7) of the Administrative Appeals Tribunal Act 1975 (the Act),
3. directs that the application be dismissed pursuant to s 42A(8) of the Act, without the Tribunal proceeding to review the decision.
The applicant may apply to the Tribunal, under s 42A(8) of the Act, for reinstatement of the application within 28 days after receiving this notification that the application has been dismissed.
The Direction contained a mistake in that the dismissal for failure to appear was in fact under s 42A(2) which enables a person to apply for reinstatement of the application under s 42A(8) within 28 days after receiving notification of the dismissal.
45. In the Tribunal’s opinion, these sequence of events were entirely of the Applicant’s own making. There was no administrative error by the Tribunal, which chose to dismiss the application under s 42A(2) rather than s 42A(5) to enable the Applicant to apply for reinstatement should he have chosen to do so. Had Mr Guo stayed in touch with his solicitors or taken other steps such as instructing other solicitors or at least maintaining contact with the Tribunal, none of this would have happened. Since there was no administrative error by the Tribunal, there is no power to reinstate Mr Guo’s application pursuant to s 42A(10).
46. The Tribunal notes that it would not have been appropriate to conduct a hearing in the absence of Mr Guo, an earlier direction dated 14 October 1997 requiring the Applicant to file and serve his Statement of Facts and Contentions together with witness statements for any witnesses to be called at the hearing, having not been complied with.
47. Having decided that reinstatement pursuant to s 42A(10) is not open to the Applicant, the Tribunal turns to the Applicant’s alternative application – for an extension of time to lodge a second application for a review of the delegate’s decision dated 25 October 1996.
48. The principles guiding the Tribunal in the exercise of its discretion in deciding whether to grant an extension of time have been the subject of many Federal Court and Tribunal decisions. It is widely accepted that the Tribunal should be guided by the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. However as Hill J noted in Brown v Federal Commissioner ofTaxation (1999) 42 ATR 118, at paragraph 41, too slavish an adherence to those principles should be avoided.
49. Prima facie, proceedings commenced outside the prescribed period will not be entertained. However, an extension may be granted if it is proper to do so. The first proposition is that an Applicant applying for an extension of time must provide an explanation for the failure to lodge the application within the required period, which, in the ordinary case, should be an acceptable explanation for that failure. Secondly, it is relevant to consider whether the Applicant has “rested on his rights” such that the decision-maker may have believed that the matter may have finally been concluded. Thirdly, is there any prejudice to the Respondent by the granting of an extension of time? Fourthly, should relevant matters of public policy and public interest be taken into account? Fifthly, what are the merits of the application? The Applicant should be able to show that he or she has an arguable case. Sixthly, would the granting of the extension of time raise considerations of fairness as between the Applicant and other persons in a like position?
50. Dealing with each of these propositions in turn, first, as already established, the Applicant’s first application was dismissed pursuant to s 42A(2) of the AAT Act. Secondly, did the Applicant rest on his rights in making this second application? The Tribunal finds that he became aware of the dismissal of his first application in March/April 1998. He then made no attempt to do anything about this. He said in evidence that he assumed that because his family were here permanently he could stay. It was only after Mr Guo was taken into immigration detention on 12 December 2001 that he found out how serious his situation was and again sought legal advice. Essentially he did nothing about his Tribunal application between April 1998 and December 2001, a period of three and a half years. His explanation that he thought he could stay because his family was here permanently, lacks credibility. Despite a lack of knowledge of the immigration system and processes, it should have been obvious that if he did not pursue his visa application he could not stay in Australia. He had already had a number of different visas during the currency of his stay in Australia.
51. Thirdly, there is likely to be some prejudice to the Respondent by reason of nearly eight years having elapsed since 25 October 1996, the time of the decision of which a review is sought. The Respondent has not, however, been specific about this and the Applicant contends that there will be no prejudice. Fourthly, will there be any wider prejudice in terms of the public interest or public policy? The length of time which has passed since the original decision and the circumstances of the Applicant doing nothing to progress his application for such a significant period are, in the Tribunal’s view, factors to be taken into account given that applications for review must usually be made within 28 days of notification.
52. The fifth proposition raises the merits of the Applicant’s substantive case should the matter go to hearing. This in turn requires reference to s 501(1) of the Migration Act 1958. First, the Applicant concedes that he does not pass the character test by reason of his past criminal conduct (s 501(6)(c)(i)). Mr Guo has the following convictions:
Date of Conviction
Offence
Penalty
6 August 1991
“being found in a gaming house”
$150 fine
14 November 1994
“Possess falsified passport of a foreign government”
$500 fine
29 April 2004
Custody of stolen property (jewellery worth $137,400)
5 months 15 days imprisonment
53. There are also unsubstantiated allegations in some of the documentary material before the Tribunal to which the Tribunal has not attached any weight because the Applicant has not had the opportunity to test those allegations.
54. The Applicant having conceded that he does not pass the character test, a substantive hearing of this matter would focus on the exercise of the discretion in s 501(1) to not refuse the grant of a visa, including reference to the guidance provided to decision-makers by Direction No 21, Visa Refusal and Cancellation under s 501, made by the Minister under s 499(1) of the Act. The Direction identifies three primary considerations together with “other considerations” that are generally to be given less weight. The three primary considerations are the protection of the Australian community, the expectations of the Australian community and the best interests of any children aged less than 18.
55. A consideration of the protection of the Australian community requires reference to the seriousness of the offences, whether there is a risk of repetition and the deterrent effect of the refusal of a visa. It is likely that Mr Guo’s criminal history would be regarded as relatively serious, and there is a suggestion of continuity in the repetition of his offending. Refusal of a visa in such circumstances could have a deterrent effect. Secondly, in the Tribunal’s view it is likely that the Australian community would expect that a person who does not respect Australia’s law should be refused a visa.
56. However, the third primary consideration, the best interests of Mr Guo’s two children is likely to favour the grant of a visa given that the older son Charlie, aged 15, is an Australian citizen, and the younger son, William, aged 11, is a permanent resident. Mr Guo’s wife, Shi Wei, is also an Australian citizen. The Respondent questioned whether it is in the best interests of the children to remain with their father given his criminal antecedents and lifestyle, noting, for example, that he was not present when his home was the subject of a police raid in July 2003. The Respondent also noted that Mr Guo has lived away from his children for significant periods of time.
57. With regard to the other considerations, there has been little evidence concerning Mr Guo’s relationship with his wife. The Tribunal notes that she too was convicted of a criminal offence following the search of their home on 12 December 2001, in relation to the possession of 520 ecstasy tablets, and sentenced to six months imprisonment from which she was released in November 2003. Weighing up these considerations, in the Tribunal’s view Mr Guo’s case for the exercise of the s 501(1) discretion is not a very strong one.
58. The last of the six propositions relevant to the application for extension of time is that of fairness as between the Applicant and other persons in a like position. Given the length of time for which the Applicant delayed in pursuing his application, this is a relevant factor.
59. Having considered these six propositions, the Tribunal does not consider that it would be appropriate to extend the time for the lodging of the second application. In the Tribunal’s view, a more appropriate course is for him to submit a new application for a spouse visa in the ordinary way. The Tribunal therefore refuses the application to reinstate the first application for a review and refuses the application for an extension of time to lodge a second application.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 21 and 22 June 2004
Date of Decision 9 July 2004
Counsel for the Applicant Mr L Karp with Mr B Murphy
Solicitor for the Applicant Ren Zhou Lawyers
Solicitor for the Respondent Ms S Hanstein, Blake Dawson Waldron
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