Jennings, W.J. v Minister for Immigration, Local Government & Ethnic Affairs
[1992] FCA 628
•31 AUGUST 1992
Re: WILLIAM JOHN JENNINGS
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G178 of 1992
FED No. 628
Administrative Law
(1992) 28 ALD 475 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)
CATCHWORDS
Administrative Law - judicial review - application to extend time to lodge application under ADJR Act - principles to be applied.
Administrative Decisions (Judicial Review) Act 1977, s. 13
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
HEARING
MELBOURNE
#DATE 31:8:1992
Appeared for the applicant: Miss P. Tate
Instructed by: Juliano Ford and Co.
Appeared for the respondent: Mr D.J. O'Callaghan
Instructed by: Australian Government Solicitor
ORDER
Application for extension of time refused.
JUDGE1
The applicant seeks an extension of time to make an application for review under the provisions of the Administrative Decisions (Judicial Review) Act 1977.
It is common cause that the prescribed period for the purpose of section 11 expired on 15 January 1992. An application was lodged on 25 May 1992 and on 24 August 1992 notice of motion seeking an extension of time was filed.
On 26 August 1992 I heard the application for extension of time and dismissed it with costs. At the time I indicated that I would give written reasons for my decision which I now publish.
The evidence upon which the applicant relied in support of his application for extension of time is contained in two affidavits sworn by his solicitor Mr P.D.B. Baker on 25 May 1992 and 24 August 1992 respectively. The respondent, who opposed the granting of an extension of time filed an affidavit of Mr J. Fensling, an officer of the Department of Immigration Local Government and Ethnic Affairs, sworn 26 August 1992. Neither of the deponents were cross-examined, and in the circumstances no findings as to credibility were made. Accordingly, the affidavits were accepted as prima facie evidence of the matters deposed to therein.
Although the affidavit material lacks much of the informative detail usually found in this type of application it is possible to glean from the evidence the following sequence of events:
In 1987 the applicant, an Indian citizen then living in India, together with his mother and some, but not all of his siblings, made application to migrate to Australia. The applicant's mother and siblings were granted the necessary approval but for some reason, possibly because his file was misplaced, the applicant's application was not finally dealt with until late in 1988, by which time the relevant criteria had changed and the application was refused. It is said (and for present purposes it can be accepted to be so) that had the application been dealt with expeditiously, it would not have been refused. By letter dated 23 November 1988 the Australian High Commission advised the applicant of the refusal of his application and the reasons therefor. In the same letter he was advised that the decision was reviewable through the Immigration Review Panel process and information concerning that process was supplied. Review was not sought. On 18 October 1989 the applicant entered Australia as a visitor and was granted a temporary entry permit for 3 months. A further temporary entry permit was granted on 3 January 1990 enabling him to stay in Australia until 18 April 1990. On 3 April 1990 he applied for an Extended Eligibility (Family) Entry Permit
(EEFEP). There was some confusion as to the correctness of the form of the application and ultimately on 4 April 1991 a further application form was submitted. On 18 October 1991 a delegate of the Minister refused to grant an EEFEP. At the request of the applicant's solicitors the delegate gave a statement of his reasons pursuant to section 13 of the ADJR Act on 18 December 1991. In a letter dated 31 January 1992 addressed to Dr Ian Heath, Department of Immigration, Local Government and Ethnic Affairs, Melbourne, the applicant's solicitors wrote, inter alia:
...
Within 28 days of 18 December 1991 we must issue proceedings under the Administrative Decisions (Judicial Review) Act 1977. In paragraph 15 of the Section 13 Reasons Colin Cameron the delegate turned his mind to a letter from this firm dated 28 March 1990 in which we had requested that our client's application be looked at sympathetically given that the claim that "he would have been eligible to enter Australia at the time his mother and his other two brothers entered Australia in 1987 if it were not for a mix up in processing his application in India".
Colin Cameron decided that there was no provision within the Act or Regulations for consideration of an application on the basis of "misadventure" by an Overseas Office of the Department. Given that claim he declined to investigate or make a decision on that claim. We enclose a copy of the Section 13 Reasons.
...
On 31 October 1991 we wrote to the Department and enclose a copy of our letter which we noted that it was at the suggestion of one of your offices that applications were lodged under the new regulations and it was with considerable surprise that we found that these had been rejected. The submission of these applications did not however affect our client's rights at law. In this regard we note that our client applied under the old law and his rights of review have not expired (refer to section 8(1)(c) of the Acts Interpretation Act 1901). Accordingly we put the Department on notice that unless something could be done very promptly to sort this out that we proposed to complain to the Ombudsman and file an application for extention (sic) of time for an order to review pursuant to section 5 of the Administrative Decisions (Judicial Review) Act 1977. It was in this context that we requested section 13 reasons. We would request that the Department enter into an agreement whereby the time for making an application to the Federal Court be extended until such time as the allegations set out above are properly examined.
On 10 February 1992 the applicant's solicitors wrote again requesting a response to their letter of 31 January 1992. On 21 February 1992 the Migration Internal Review Office (MIRO) advised that the matter was currently being investigated and on 19 March 1992 MIRO advised that the matter would be considered further on receipt of the file from New Delhi.
Following receipt of the file from India MIRO wrote to the applicant's solicitors on 24 April 1992. After making reference to the rejection of the applicant's original application in 1988 and to the fact that the review rights were not availed of at the time the letter continued:
...
Mr Jennings had a second opportunity to seek review after 31 May 1990 following an announcement by the Minister on 9 May
1990. Regulation 173A was introduced from 31 May 1990 to provide certain applicants with a right to reconsideration of entry permit or visa refusals. Mr Jennings' case came within these provisions. This right to reconsideration was open to him until 31 August 1990, and entitlement to seek such reconsideration was publicised both in the Australian press and at overseas offices. However, Mr Jennings also failed to take advantage of this second opportunity for further consideration of his case.
Given the time that has since elapsed, it is not now possible for the Department to review this decision. While I can understand that Mr Jennings may be reluctant to do so, it remains open to him to lodge a new migration application and have the case considered afresh under current legislation.
I trust this clarifies the situation for you. As Mr Jennings no longer holds a valid temporary entry permit, he should make immediate arrangements to depart Australia and notify these to:
Compliance Section Department of Immigration, Local Government and Ethnic Affairs 2nd Floor, 55 King Street Melbourne 3000 (Tel: 612 3327) within 7 days of the date of this letter. Mr Jennings' file has been referred to that area for further action.
On 6 May 1992 the applicant's solicitors wrote to the compliance section of DILGEA in Melbourne:
Dear Sir,
RE: WILLIAM JOHN JENNINGS
We refer to the letter of Alan Hutchinson of 24 April 1992. Our client requests that he be permitted to leave within 30 days of 24 April 1992. A copy of the airline ticket will be provided to you as soon as it is in hand detailing flight arrangments (sic).
Please confirm that the above arrangement is acceptable. and on the next day received the following reply: Refer to your fax of 06/05/92. DILGEA prepared to allow a/n to depart within 30 days of 24/04/92 i.e. on or before 22/05/92. However your client is required to attend compliance sometime prior to departure with his passport and ticket. When attending please make prior arrangements to ensure I am in attendance.
On 22 May 1992 the applicant's solicitors wrote again saying:
We refer to your telefax of 7 May 1992. We have been instructed by our client to file Federal Court proceedings challenging the decision made by the Department on 24 April 1992. The Federal Court proceedings will be filed on 25 May 1992.
We request Section 13 Reasons under the Administrative Decisions (Judicial Review) Act in relation to that decision.
The application for review was filed on 25 May 1992.
In his second affidavit (sworn 24 August 1992) Baker deposed that the reason for not filing an application for an order to review at an earlier date was that the applicant's solicitors were attempting to resolve the matter through further consideration.
I turn now to the application filed on 25 May 1992. It is said to be an application to review the following conduct and decisions of the respondent:
A. Conduct of the Respondent to be reviewed:
1. The failure of the Respondent to make any decision or give proper or prompt consideration on the merits of the application made by the Applicant in New Delhi, India in or about 1987 to migrate to Australia.
2. The failure of the Respondent to expeditiously make a decision in relation to the Applicant's application to migrate to Australia made in New Delhi in or about 1987.
3. The failure or delay by the Respondent to make a decision in respect of the Applicant's application to migrate to Australia made in New Delhi in or about 1987 in circumstances where the law governing the Applicant's application changed and the delay which was occasioned by the Respondent's officers handling of the Applicant's application to migrate was such that the Applicant was disadvantaged. B. Decisions of the Respondent to be reviewed:
1. That the Applicant not be permitted to migrate to Australia in or about 1988.
2. That the Applicant not be permitted to remain in Australia.
3. That the Applicant be required to depart Australia.
The grounds upon which relief is sought are:
D. A breach of the rules of natural justice has occurred in relation to the conduct and the making of the decisions in that the Respondent by its delay has effectively prejudiced the Applicant's ability to migrate to Australia.
E. Insofar as there has been a (sic) exercise of power or conduct by the Respondent, such exercise and conduct was so unreasonable that no reasonable decision maker could have exercised the power to engage in the conduct the way in which the Respondent did: PARTICULARS
By delaying the consideration of the Applicant's application to migrate to Australia in 1987 the Respondent effectively prejudiced the Applicant's position. The Applicant met the points test to migrate to Australia at the time his application was made. Due to delay and the failure to make a decision by the Respondent and s (sic) change to the applicable the applicant (sic) has been effectively prevented from migrating to Australia.
By requiring the Applicant to file a fresh application in Australia and having the Applicant comply with new procedures and then by failing to have regard to the earlier circumstances which prejudiced the Applicant's position. The Respondent acted unreasonably in circumstances where the fresh application should have been apporved (sic).
The application does not identify the decisions sought to be reviewed with sufficient particularity to enable it to be ascertained whether or not the application is within time. However, at the hearing of the application for extension of time counsel for the applicant indicated that review was not sought in respect of decision B(1), that the decision referred to in B(2) was the decision made on 18 October 1991 to refuse an EEFEP, and that in B(3), the intention was to refer to the statements in the letter of 24 April 1992 in which it is said:
it is not now possible for the Department to review this decision.
and later:
he should make immediate arrangements to depart from Australia ...
As to the matter referred to in B(3) it is my opinion, and I said so at the time the matter was before me, that no decision to which the ADJR Act applies is involved. Indeed, no decision at all is reflected by those words. Taken in their context, the passages referred to are no more than observations made by the author of the letter which in no way affected the rights or status of the application. Having explained what had occurred in the past the statement first quoted merely sums up the position. It is not said that the preceding details are in any way incorrect nor that the statement is in any way a misconception. The second statement quoted, urging the applicant to make arrangements to leave Australia is no more than a piece of good advice. The consequences of not accepting the advice must have been obvious to the applicant, namely deportation.
The only live issue which the applicant wished to litigate had to do with the decision of 18 October 1991. As to this the following observations can be made:
1. Section 13 reasons were given on 18 December 1991 and on 31
January 1992 review proceedings were threatened. At the time the prescribed period had expired. The applicant's solicitors sought but did not receive an undertaking that an extension of time would be agreed to;
2. When all of the correspondence concerning the decision was
concluded, namely on 24 April 1992, the applicant's reaction was to seek the department's indulgence to remain for a further 30 days, until 22 May 1992, an indulgence which was readily granted;
3. On the last day of the extended period granted by the department,
the solicitors notified the department that a review application would be filed;
4. There is nothing in any of the material filed to suggest a basis
upon which the decision is reviewable under the ADJR Act.
On the material put to the Court it is possible to say two things. First, that the application is entirely devoid of merit, and second, that the conduct of the applicant as evidenced by the actions of his solicitors suggest that the review application has not been made bona fide for the purpose of obtaining the review of a decision in accordance with the ADJR Act.
The power of the Court to allow a review application to be lodged out of time is discretionary, and its exercise is not fettered by any statutory criteria. Just as there are obvious policy considerations involved in placing a time limit upon the bringing of review applications, there are equally obvious, and important reasons why those limits ought not to be too oppressive. The discretion must be exercised judicially for good reason. The interests of substantial justice and the furtherance of the general policy of the legislation should always be paramount.
Counsel referred to a number of authorities dealing with the question of extending time under section 11 but none of the cases referred to bears any relevant factual similarity to the present matter. Whilst the various principles referred to in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 are undoubtedly a very useful guide, they are no more than that. In the instant case, as a matter of discretion, I decided to refuse an extension of time for the reasons that it appeared to me that the substantive application was doomed to failure and that the appellant's conduct in delaying the application had not been satisfactorily explained.
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