Karip, A.N. v The Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 963

JUDGMENT No. .... ~(i~.../.".~&

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIAN DISTRICT REGISTRY	No. VG 416 OF 1992
GENERAZl DIVISION	)
B E T W E E N :

AHMET NUR1 KARIP

Applicant

A N D:

Respondent

JUDGE MAKING ORDER	KEELY J
PLACE ORDER MADE	MELBOURNE
DATE ORDER MADE	15 DECEMBER 1992
THE COURT ORDERS THAT:

1.   The Applicant's motion dated 4 November 1992 be dismissed.

2.   The Applicant pay the respondent's costs of the motion.

3 0 DEG 1992

General distribution not reauired

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIAN DISTRICT REGISTRY	) No. VG 416 OF 1992
)
GENERAL DIVISION	1
B E T W E E N :

AHMET NUR1 KARIP

Applicant

A N D:

Respondent

15 DECEMBER 1992 KEELY J

REASONS FOR JUDGMENT

Mr Ahmet Nuri Karip ("the applicant") by notice moved the

court for orders that:-

"1. Insofar as is necessarr there be aranted aursuant to ~ - -- --

Section ll(l)(c) of the ~dministrative Decisions jJudicia1 Review) Act 1977 ["the Judicial Review Act"] an extension for time in which to make application for an Order to Review.

2.   Neither the Respondent nor his delegates make or implement a deportation order in respect of the Applicant herein pending the determination of the Application for an Order to Review."

Following upon a statement by counsel for the respondent (see transcript 2 7 ) , counsel for both parties did not address any argument as to the second order in the notice of motion.

Accordingly the present hearing has been confined to the application for an extension of time. As to that application both counsel relied upon the review of cases relevant to the exercise of the court's discretion made by Wilcox J in Hunter Vallev Develo~ments Ptv Ltd v Cohen (1984) 3 FCR 344 at 348-

"Already there have been a number of decrsions of ]udges of this Court, all arttrng at frrst instance, dealing wlth the approach proper to be taken. They differ a llttle, both in language and in emphasis, but I venture to suggest that from them may be distilled the following prrnciples to guide, not in any exhaustive manner, the exercise of the court's discretion:

1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Speclal clrcumstances need not be shown but the court wrll not grant the application unless positively satisfied that it is proper so to do. The "prescribed period' of twenty-eight days is not to be ignored (Ralkon Agrlcul tural Co. Pty Ltd v. Aboriginal Developnent Commissron (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period wlll not be entertarned (Luczc v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condltron to the exercise of discretion in his favour that the applicant for

extension show an "acceptable explanation of the

delay" and that it rs "farr and equitable in the

Court of Australia, Neaves J., 9 December 1983) at clrcumstances" to extend time Duff [(1982) 43 ALR 4791 at 485; Chapnan v. Reilly unreported (Federal 7) -

2.     Action taken by the applicant, other than by making an applrcation for review under the Act, is relevant to the consideration of the question whether an acceptable explanatron for the delay has been furnuhed. A drstrnction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to belleve that the matter was finally concluded. Compare Doyle, Chapnan, Ralkon and Douglas v. Alien (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this d~stinction are not only the "need for f~nality in disputes" (see Lucic at 410) but also the "fadmg from memory" problem referred to

in Wedesweiller v. Cole (1983) 47 A.L.R. 528.

3.    Any prejudice to the respondent including any preludice in defending the proceedings occasioned by the delay is a material factor militating agarnst the grant of an extension: see Doyle at 287, Duff [(1982) 43 ALR 4791 at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.

4.     However, the mere absence of prejudrce is not enough to justify the grant of an extension: Douglas, L u c ~ c at 416, Hickey at 523. In this context, publ~c consrderations often rntrude (Lucic, H~ckey). A delay which may result, rf the application rs successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of establrshed practices (Douglas) rs likely to prove fatal to the applicatron.

5.    The merits of the subatantral application are properly to be taken rnto account in considering whether an extensron of time should be granted: Lucic at 417, Chapan at 6."

In Lucic v Nolan ( 1 9 8 2 ) 45 ALR 411, c i t e d by Wilcox J . i n

paragraph 5 above, Fitzgerald J . sa id ( a t 416-417):-

"However, I consrder that an applicant for an extension of time maintains throughout the burden of showing why, in all the circumstances, the extensron of trme should be granted. I do not think that, given proof of certain matters by an applicant, eg an explanatron for his delay rn making applicatron, an evident~ary onus shifts to the respondents to establish that prejudice will result if the extensron is granted; nor, in my oprnron, if the delay rs explained and there will be no personal prejudice to the named respondents, should an extension always be granted. All else aside, there will often be no question of prejudice to a respondent decision-maker.

be possrble to enumerate the great variety of possibly

It is neither necessary nor desirable, if indeed it would

material circumstances to be consrdered on an application for an extension of time. Nor, in my opinron, is it possible to identify partacular circumstances or classes of circumstances which must automatrcally be excluded from consideratron. Each indivrdual case should be dealt with individually, giving due werght to prror decisrons and what they reveal of judrcial attitudes:cf s ll(4) and (5). Whilst there are obvrous reasons why there should be no attempt at a full investigation of the merits of the applrcatron for review on an applrcation for an extension of time, I would not exclude from consideration an an appropriate case some obvious strength or weakness rn an applicant's case or matters which might lustify the refusal of relief, af the court has a discretion to do so where a ground for relref is made out."

I s h a l l s t a t e short ly the conclusions that w e r e reached by m e

after considering the material filed and the submissions by counsel for the applicant and counsel for the respondent, and reading the transcript of those submissions:-

1.   The applicant requires an extension of time in respect of his proposed attack on the decisions made on 1 November 1991 and also the decision made on 27 July 1992.

2.    The second decision was made on 27 July 1992 ("the second decision") and not at a subsequent date as contended by the applicant's counsel.

3.    The second decision was notified to the applicant's solicitors and accordingly had been "furnished to the applicant" within the meaning of s.l1(3)(b)(iil) of the Judicial Review Act on the proper construction of that sub-clause. I am unable to accept the submission by the applicant's counsel

v. Trade Practices Commission and Ors (1983) 51 ALR that the decisions in Accident Insurance Mutual Ltd 792 and Australian Foremen Stevedores Association and Ors v. Crone and Anor (1989) 98 ALR 276 are distinguishable.
4.	I accept the submission by the respondent's counsel that the proposed attack on the second decision cannot succeed because the application under regulation 173A was out of time and was not capable of being heard, determined or considered by the respondent. The applicant also attempted to rely upon estoppel saying that the respondent was estopped from denying that the application was made within time. That contention fails on the facts - because, as the respondent's counsel pointed out (transcript 59), the conversation sought to be relied upon occurred in January 1992 i.e. after the time for lodging the application under regulation 173A had already expired. Plainly the applicant could not have acted to his detriment by relying upon a representation made after the time fixed for the lodging of his application - see regulation 173A(4)(a) which provided that the "application ... to reconsider a decision . . . must be lodged . . . before the expiration of 28 days after the applicant was notified of the decision ...". I accept the submission by the respondent's counsel that the applicant's attempt to rely upon estoppel also fails as a matter of law because an estoppel cannot
operate so as to override a statutory duty or a duty imposed by regulation made under a statute.

5.   Notice of the decisions made on 1 November 1991 was forwarded to the applicant at 18 Milford Court, Meadow Heights, the address which he deposed had "been [his] mailing address for all correspondence with the Respondent" (see paragraph 6 of his affidavit, affirmed 17 November 1992).

6.    Having considered the many detailed comments made by his counsel on the actions and alleged inaction of the solicitors then acting for the applicant, in my opinion the applicant has not given any acceptable explanation for the delay in commencing the proceedings. However, I accept his counsel's submission (transcript 41) that the applicant, personally, had not "rested on his rights" - see passage quoted in paragraph 2 of the passage from Wilcox J. in Hunter Vallev (above).

7.  The respondent's counsel submitted that the applicant's proposed attacks upon the decisions given on 1 November 1991 have no real prospect of success. The applicant's first attack is based upon the reasoning process in a document dated 30

September 1991 ("the departmental submission"),

signed by Hazlehurst, an officer of the respondent's department, which was addressed to Mr Trevor Griffiths ("the delegate").

Before dealing with the criticisms by the applicant's counsel of that document it should be noted that:-

(1) The departmental submission was provided to the applicant's solicitors by letter dated 30 September 1991, and in that letter the delegate invited the applicant "to provide comments on that submission, if he so wishes".

(2) The applicant's solicitors accepted that

invitation and responded at some length.

(3) The departmental submission did not constitute the statement of reasons of the delegate. The delegate did not state that he adopted the reasoning process in the departmental submission but, in a document attached to the advice of his decision on 1 November 1991, stated that he had "had regard to the Departmental file V 87/947, and in particular the following documents:

*	Submission from Howie & Maher, on M r Karip's behalf, dated 29 November 1990.
*	Submission by David Hazlehurst, a DILGEA officer, recommending rejection of M r Karip's application.
*	Submission from Howie & Maher, dated 17 October 1991, responding to Mr Hazlehurst's submission."

The applicant criticised certain passages in the departmental submission relating to the words "compassionate" and "humanitarian" and submitted that the delegate had accordingly

erred in law by "having regard to" the departmental submission containing those passages. Having read the transcript of the submission of the applicant's counsel, and the authority relied upon (Damouni v Minister for Immiaration. Local Government and Ethnic Affairs (1989) 87 ALR 97) and paragraphs 3A(a) and (b) of the application, in my opinion there is no substance in the submission that the delegate erred in law in that respect.

The applicant's second attack was that the delegate failed to take into account relevant considerations, namely:-

"(a)	The cumulative effect of all those matters relied upon by the Applicant in support of his application;
(b)	The emotional harm which would be sustained by the Applicant should the application be refused. " (application, paragraph 3B)

On all the material, including the departmental submission, in

my opinion that submission has no real prospect of success.	The departmental submission to which the delegate "had regard"
referred to those matters in (a) and (b) and it is to be inferred that the delegate did take those considerations into account. The weight to be given to those matters was, of course, a matter for the delegate; he may have had the same doubts as to the credibility of the applicant as those expressed in the departmental submission.
The applicant's third attack was that set out in ground 3C of the application, namely, that each decision "was so unreasonable that no reasonable person could have exercised the power in such a way". The particulars to that ground repeated "the particulars sub-joined to paragraphs (3)A and (3)B" of the application, which have already been referred to in dealing with grounds 3A and 3B. In my opinion ground 3C also has no real prospect of success.
In my opinion it would not be a proper exercise of the court's discretion to grant either of the extensions of time sought by the applicant. The motion will be dismissed and the applicant will be ordered to pay the respondent's costs of the motion.

I certify that this and the preceding eight (8)

pages are a true copy of the Reasons for

Judgment of Mr Justice Keely.

Associate: S p a / >

Dated: 15 December 1992.

Counsel for the Applicant : Mr O.P. Holdenson

Solicitors for the Applicant	: Juliano Ford & Co.
Counsel for the Respondent	:  Mr K.H. Bell

Solicitors for the Respondent : Australian Government

Solicitor

Date of Hearing	:	2 December 1992
Date of Judgment	:	15 December 1992