KUMAR v Minister for Immigration and Anor (No.2) - [2020] FCCA 2516

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2020] FCCA 2516

Catchwords:
MIGRATION – Application for extension of time for filing of Originating Application for Review – change of law since decision of Tribunal immaterial in the circumstances – delay in excess of 4 years and 10 months from date of the decision of the Tribunal to the date of the filing of the Originating Application – public policy considerations – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth) s.477(2).

Migration Regulations 1994 (Cth), sch.2. cl.820.211, sch.3. cl.3001.

Cases cited:

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous

Affairs (2002) 116 FCR 557.

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.

Vella v Minister for Immigration and Border Protection (2015) 98 ALJR 89.

Re Commonwealth of Australia & Anor; ex parte Marks (2000) 177 ALR 491.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

Tran v Minister for Immigration and Border Protection [2014] FCA 533.

Prince Alfred College v ADC (2016) 258 CLR 134.

Applicant:

DEEPAK KUMAR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 1009 of 2019

Judgment of:

Judge Egan

Hearing date:

7 September 2020

Date of Last Submission:

7 September 2020

Delivered at:

Brisbane

Delivered on:

9 September 2020

REPRESENTATION

Applicant:

In person

Solicitors for the First Respondent:

Mr Freeburn, Solicitor of Clayton Utz

Second Respondent

Submitting appearance save as to costs

ORDERS

The application for extension of time for the filing of the Originating Application for Review is dismissed.
The Amended Application for Review filed on 21 May 2020 is dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1009 of 2019

DEEPAK KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of the Republic of India who made application for a Partner (Temporary) (Class UK) visa on 6 June 2013 on the basis of his relationship with his sponsor.
By a decision dated 31 July 2013, a delegate to the Minister refused to grant the visa on the basis that the visa applicant did not satisfy cl. 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The applicant applied for a review of the delegate’s decision by the Migration Review Tribunal (‘the Tribunal’).
At [6] – [8] inclusive of its reasons, the Tribunal found as follows:
“[6] An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl. 820.211(2)(d).
[7] It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
[8] In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. The applicant’s last substantive visa ceased on 30 July 2011 and he has remained in Australia on a bridging visa since that time. The applicant lodged his visa application on the 6 June 2013. Based on the evidence before it, the Tribunal finds that the applicant did not lodge the visa application within 28 days of the relevant day and he cannot satisfy criterion 3001.”
Because the applicant did not satisfy Schedule 3 criteria 3001, the Tribunal considered whether there were compelling reasons for waiver of the requirement that the Schedule 3 criteria were satisfied. For the purpose of its doing so, the Tribunal addressed that issue by reference to circumstances which prevailed based upon “time of application criteria”. The basis for its doing so was a decision of Wilcox J in Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 116 FCR 557 at [33]. The Tribunal made clear its intention to do so at [23] of its reasons where it was said:
“[23] The Tribunal explained that the compelling reasons had to have existed at the time of application, and the domestic violence did not start until after that time. The applicant stated that his relationship has now ended. He is not able to go offshore to make another application.”
(Emphasis added)
On 28 January 2015, the Tribunal affirmed the decision of the delegate to refuse to grant the visa.
At [28] of its reasons, the Tribunal found that because the alleged domestic violence perpetrated upon the applicant occurred after the making of the visa application, such matter was unable to be considered as constituting a compelling reason for waiver of the Schedule 3 criteria because compelling reasons had to be in existence at the time of the making of the visa application.
The decision of Wilcox J was overruled by a decision of the Full Court of the Federal Court of Australia handed down on 11 March 2016 in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 at [21] – [22] per Robertson J and at [49] – [51] per Griffiths J.
On 25 November 2019, the applicant filed an un-particularised Originating Application for Review of the decision of the Tribunal. On 21 May 2020, the applicant filed a particularised Amended Application for Review consequent upon the making of an order by the Court on 7 May 2020 requiring the applicant to do so. The application as amended included an application for extension of time for the filing of the Originating Application for Review.
Considerations relevant to the hearing of an application for an extension of time pursuant to the provisions of s. 477(2) of the Migration Act 1958 (Cth) (‘the Act’) include:
a)The extent of the delay.
b)Whether there is any acceptable explanation for the delay.
c)Whether there is any prejudice to a respondent in the event of the extension for time application being granted.
d)The merits of the substantive application before the Court.
In Vella v Minister for Immigration and Border Protection (2015) 98 ALJR 89 at [3], Gageler J, in relation to an application for an extension of time where there had been a 16 month period of delay, said as follows:
“[3] The critical question for me is that posed by s 486A(2)(b): whether I am to be satisfied that it is necessary in the interests of the administration of justice to make the order extending the period for the making of the application. Mr Walker has properly conceded that, given the length of the extension sought, I would only reach that satisfaction were I to be persuaded that Mr Vella's case is "exceptional".”
(footnotes omitted)
At the hearing before this Court, it was conceded by Mr Freeburn, on behalf of the first respondent, that the Tribunal was wrong at law to confine its consideration of what may or may not have constituted compelling reasons for waiving the Schedule 3 criteria to facts, matters and circumstances evident as at the time of the application for the visa, as opposed to those evident at the time of decision in respect of such application. On that issue, Griffiths J at [57] of Waensila said as follows:
“[57] The point is well illustrated by the appellant’s own circumstances. It took almost three and a quarter years for the delegate to determine his partner visa application. During that period, the appellant and his wife remained married and she became dependent upon him not only financially but also concerning her various health issues. It is difficult to understand the logic or policy for denying the decision-maker the right to take these matters into account in determining whether the appellant should be required to leave Australia and make an application for a different partner visa from overseas (the appellant did not dispute that if he were required to return to Thailand he could lodge an application there for a partner (Provisional) (Class UF) partner visa). Circumstances which constitute “compelling reasons” and give rise to hardship can arise at any time, including after the application is made. Clear words are required to prevent the Minister from taking such matters into account.”
Notwithstanding Mr Freeburn’s concession, it was submitted by him on behalf of the first respondent that this Court should not grant an extension of time for the filing of the Originating Application for Review of the decision of the Tribunal because of the time lapse of:
a)4 years and 10 months between the time of the making of the decision by the Tribunal; and
b)3 years and 8 months between the time of the handing down of the judgment in Waensila;
to the time of the filing of the Originating Application for Review on 25 November 2019.
In support of such submission, Mr Freeburn referred to the single judge decision of McHugh J in Re Commonwealth of Australia & Anor; ex parte Marks (2000) 177 ALR 491 at [16] – [17] where it was said by His Honour:
“[16] Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
[17] An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant’s search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.”
(Citations omitted)
There is no suggestion that the delay in the filing of the Originating Application for Review was in any way caused by the first respondent or any other relevant public body.
Mr Freeburn further relied upon Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 – 555 per McHugh J where His Honour said:
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that"[w]here there is delay the whole quality of justice deteriorates". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
Even before the passing of the Limitation Act 1623 (Imp), many civil actions were the subject of time limitations. Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties.
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:
"The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served."
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
The scheme of the Act is that s II forbids the bringing of an action for damages for negligence after the expiration of three years from the date on which the cause of action arose unless leave is given under s 31. It follows that an applicant for extension must show that justice will be best served by excepting the particular proceedings from the general prohibition which s II imposes. In this context, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved. That the applicant had a good cause of action and was unaware of a "material fact of a decisive character relating to the right of action" does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time. Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion, as Davies JA and Ambrose J held. As Wells J has pointed out, "to qualify is not to succeed". The object of the discretion, to use the words of Dixon CJ in a similar context, "is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case". In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.
In the present case, the learned District Court Judge held that the present respondent was "placed in a position of serious prejudice having regard to the lapse of time which has occurred". That being so, his Honour, quite naturally, took the view that an extension of time should not be granted. The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit.
If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.
Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”
(Citations omitted)

The applicant referred the Court to paragraphs [7] – [27] inclusive of his affidavit filed on 25 November 2019 in support of his submission to the Court that he had a reasonable explanation for the delay in his filing the Originating Application for Review. The cause was said to be largely based upon erroneous legal advice as to his prospects of success.
The Court is unprepared to accept the applicant’s submission that his receipt of poor legal advice ought to be considered exculpatory. Limitation periods ought to be extended only in exceptional circumstances in the interests of justice. The delay on the part of the applicant was in all respects inexcusable. The Court adopts what was said by His Honour Justice Wigney on the question of the inability on the part of an applicant to obtain either favourable or early legal advice as to the prospects of success of any claim in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [33] – [35] and at [38] where His Honour said:
“[33] Mr Tran’s explanation for the delay was that when the Tribunal affirmed the decision to cancel his visa, he asked counsel who represented him before the Tribunal to advise him on the prospects of success if he applied to the Court for a review of the Tribunal’s decision. Counsel advised him that there was no error of law and, presumably, that therefore his prospects of success were low. He then went to the Prisoners Legal Service. There he received advice from a legal advisor that he would be in a better position to conduct research and obtain legal advice when in immigration detention after his release from prison. He was unable to obtain any other legal advice at the time because neither he nor his aunt was in a position to pay for private legal advice. As a result, Mr Tran did nothing further towards filing an application whilst he was in prison.
[34] On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.
[35] This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6]; Manna at [17].
…
[38] The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.”
The Court finds that the applicant’s delay was so extensive that the filing of the Originating Application for Review out of time was an abuse of the Court’s process. There is authority for the proposition that, depending on the circumstances of the case, the Court ought not, prior to the determination of the extension of time question, determine questions other than those relating to that issue. The High Court in Prince Alfred College v ADC (2016) 258 CLR 134 at [111] – [112] per French CJ, Kiefel, Bell, Keane and Nettle JJ, in that regard, said as follows:
“[111] The primary judge heard the issue of liability together with questions about whether an extension of time was necessary and should be granted. Section 48(5) of the Limitations Act, which allows for a question as to an extension of time to be determined after the close of pleadings, in practical terms permits this course. It is, however, a question for the court, having regard to the circumstances of the case, whether it is an appropriate course. In the present case, even if there were considered to be good reasons to hear the evidence relating to liability and the extension at the same time, that does not mean that the issue of liability should have been decided once it was obvious that there were problems arising from the state of the evidence and the position in which the PAC was placed.
[112] … The question whether an extension of time is to be granted is one necessarily antecedent to the determination of any issue in the proceedings relating to liability to which the extension is relevant. Moreover, in a case of this kind – where there had been a very long delay in commencing proceedings and the defendant had raised questions of prejudice arising from its inability to obtain evidence – it was essential that those matters, as relevant to the question of extension, be first considered. It is the consideration of those matters which will point to the appropriateness or otherwise of determining any remaining issue in the action where an extension is not to be granted.”
The application for extension of time for the filing of the Originating Application for Review is without merit and is dismissed. The Amended Application for Review is accordingly dismissed.
The Court will hear the parties as to costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 9 September 2020