Malec, S. v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 700

Re: STANISLAW MALEC
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G312 of 1992
FED No. 700
Administrative Law
(1992) 28 ALD 527 (extract)

COURT
IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

Olney J.(1)

CWDS
  Administrative Law - application of judicial review - extension of time
within which to lodge application - excessive delay by decision maker -
absence of explanation of delay by solicitor after decision finally notified -
some merit in substantive application - interests of justice in favour of
granting extension.
  Administrative Decisions (Judicial Review) Act 1977, ss. 5, 11
  Migration Act
  Migration (Review) Regulations, regulation 2A(4)
  Migration Regulations
  Hunter Valley Developments Pty Ltd v Minister for Home Affairs and
Environment (1984) 58 ALR 305

HRNG
MELBOURNE

#DATE 16:9:1992
  Mr N.L. Barlow (Solicitor) appeared for the applicant.
  Mr R. Huttner (Solicitor) appeared for the respondent.

ORDER
THE COURT ORDERS THAT:

  1.  The time for lodging application for review be extended to 20 August
1992;
  2.  There be no order as to costs for the application to extend time;

AND FURTHER ORDERS THAT:

  3.  (1)   The applicant file and serve an amended application on or

            before 5 October 1992;

      (2)   The respondent file and serve request for further and better

            particulars on or before 12 October 1992;

      (3)   The applicant file and serve any further and better

            particulars and any further affidavits on or before 19

            October 1992;

      (4)   The respondent file and serve any affidavits on or before 13

            November 1992;

      (5)   The applicant file and serve any affidavits in reply on or

            before 20 November 1992;

      (6)   The applicant file and serve contentions of fact and law on

            or before 4 December 1992;

      (7)   The respondent file and serve contentions of fact and law on

            or before 18 December 1992;

      (8)   The matter be placed in the list of cases for hearing on or

            after 18 December 1992;

      (9)   There be liberty to apply granted to both parties (on

            written notice).

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

JUDGE1
  The applicant wishes to apply pursuant to section 5 of the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act) to review a decision of the
respondent made on 16 January 1992.  The decision, accompanied by a statement
setting out the findings on material questions of fact, referring to the
evidence or other material on which those findings were based and giving
reasons for the decision was furnished to the applicant on 20 January 1992.
Accordingly, the prescribed time within which the application may be lodged
was 28 days after 20 January 1992 or such further time as the Court (whether
before or after the expiration of the prescribed period) allows.  (ADJR Act s.
11.)
2.  The applicant filed an application for review on 20 August 1992.  In
addition to the substantive relief sought the application seeks an order
extending the time for lodging the application.  The last mentioned matter
came before the Court on 9 September 1992 and after hearing argument I
reserved my decision, which I now give.
3.  In order to place the application to extend time in its proper perspective
it is necessary to canvass in broad terms events extending over a period of
more than 21/2 years.
4.  The applicant is a Polish citizen.  He arrived in Australia on 3 January
1990.  On arrival he was granted authority to stay for 6 months.  On 13
February 1990 he submitted an application for an extended eligibility
temporary entry permit (EETEP) to the Department of Immigration, Local
Government and Ethnic Affairs (DILGEA) in Melbourne.  On 12 April 1990 he
submitted further documentary evidence in support of his application. It
appears that about a year later DILGEA requested further information which was
supplied under cover of a letter dated 9 May 1991.  At about the same time the
applicant's mother wrote to the respondent drawing attention to the long delay
in processing her son's application and on 20 June 1991 the respondent
replied.  Shortly thereafter the applicant was interviewed by an officer of
DILGEA in connection with his application and on 16 January 1992 the decision
was made to refuse the same.  The decision was conveyed to the applicant by
letter dated 16 January 1992 which he received on 20 January 1992.  The letter
of 16 January 1992, after referring to the decision and to a separate document
dealing with the department's findings continued in part, as follows:

    5.  The three options open to you now are:

      1.    to depart Australia

      2.    to make an application for a further entry permit

      3.    to seek a review of this decision.

    1.    To depart Australia

          ...

    2.    To make a further entry permit application

          ...

    3.    To seek a review of the decision

      Certain categories of decision are reviewable.  If you would like

      to know whether you have a right of review of the decision

      conveyed to you in this letter, you should contact the Migration

      Internal Review Office (MIRO) on 895 3888.

      MIRO is an independent organisation within the Department of

      Immigration, Local Government and Ethnic Affairs.  It will decide

      whether you have a right of review and if so will carry out an

      independent review of the original decision.  A pamphlet is

      enclosed for your information.

    If, when you read this letter and the papers with it, you think that you

    have grounds to make another entry permit application or seek a review,

    you should do so quickly.

    ...

5.  The applicant decided to seek review of the decision.  On 10 February 1992
an application for review was forwarded to the Migration Internal Review
Office (MIRO) in Melbourne and on 24 February 1992 MIRO wrote acknowledging
receipt of the application.  Nothing further was heard from MIRO until 24 June
1992, when a letter from MIRO dated 19 June 1992 was received advising that
the decision not to grant the applicant an EETEP was not reviewable.  The
basis for this conclusion was said to be regulation 2A(4) of the Migration
(Review) Regulations, the full text of which was quoted in the letter.  An
application to review the decision of 16 January 1992 under the ADJR Act was
filed on 20 August 1992.
6.  Had DILGEA been at all diligent, what it wrote on 19 June 1992 would have
been written on 16 January 1992, and possibly the many months of further delay
avoided.  Although the respondent opposes the application for extension of
time, it is conceded that no explanation for the delay from 20 January 1992 to
24 June 1992 is called for, and indeed, had the application to this Court been
made within a reasonable period of the latter date no objection would have
been raised to an appropriate extension being granted.  The review application
was lodged on the 57th day after 24 June 1992.
7.  No attempt has been made in the affidavit evidence that is before the
Court to explain the delay from 24 June 1992 to 20 August 1992. Throughout the
whole of the period of the applicant's dealings with DILGEA his solicitors
acted on his behalf.  Apart from the letter written by the applicant's mother,
all of the correspondence which related to the EETEP application was written
by the applicant's solicitors and all responses from DILGEA were sent directly
to them. During the hearing of the application for extension of time, the
applicant's solicitor said from the bar table that the complexity of the
regulatory regime was such that a period of 28 days was required for inquiries
and research to be undertaken to investigate DILGEA's ruling that the
applicant had no right to seek internal review, and that another 28 days after
that was required to consider the possibility of seeking judicial review and
to prepare and file the application.  I totally reject that submission.  The
Migration (Review) Regulations are not at all complicated.  They have not been
subjected to the extensive and frequent amendment that has occurred in recent
years in relation to the Migration Act and the Migration Regulations.  The
letter of 19 June 1992 set out the full text of the relevant regulation which
is expressed in simple terms and is quite readily understandable.  The letter
also points out the absence of the relevant criterion which disentitled the
applicant to apply for internal review.  The applicant's solicitor has not
gone on oath as to what inquiries and research were carried out after 24 June
1992 and in the circumstances I draw the inference that the failure to lodge
the review application within a reasonable time after 24 June 1992 was due to
the dilatory conduct of the applicant's solicitor.
8.  In the circumstances of the case however, it ill behoves the respondent to
take the moral high ground when it comes to dilatoriness.  It is true that the
respondent and his department were not constrained by any time limitations in
dealing with the applicant's EETEP application and there may well be reasons
why it took nearly 2 years to deal with the original application and why it
took 5 months for MIRO to undertake the simple task of drawing regulation
2A(4) to the applicant's attention.  But the respondent has not attempted to
offer any explanation for these delays nor for the misleading information in
the letter of 19 January 1992 which suggested that internal review was an
option.  It is a matter of public knowledge that in the recent past the
respondent has been outspoken in his condemnation of the legal profession in
its handling of matters arising under the Migration Act, but even if that
criticism is justified either in general or in specific cases, the performance
of the respondent's department in this particular case is worthy of the same
type of censure.
9.  The applicant and those advising him could well be excused for thin king
that the respondent's department had little concern for the time this matter
was taking to be dealt with.  The applicant had not until after 24 June 1992
been party to any delay.  He had made his application for an EETEP well before
his 6 month entry permit expired, he had supplied further supporting
information when requested, and he had sought internal review promptly after
being advised of the refusal of his application.  Indeed, had his mother not
written to the respondent personally, one wonders if the EETEP application
would ever have been processed.  The final delay, which is the subject of this
application, was not of the applicant's personal making.
10.  In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and
Environment (1984) 58 ALR 305, Wilcox J (at p 310-311) suggested a number of
principles distilled from previous decisions which he said could be used as a
guide in matters of this nature.  It would be wrong to apply those principles
lavishly and so elevate them to the status of rules of law.  They were never
intended to be so.  Section 11 of the ADJR Act does not fetter the discretion
of the Court to grant an extension of time and when all is said and done, the
exercise of the Court's discretion should in every case be directed to
furthering the interests of justice in the context of the legislative
framework in which the discretion is conferred.
11.  Having regard to the totality of the facts of the case it would be a
grave injustice to the applicant if he were now denied the opportunity to have
the decision of 16 January 1992 judicially reviewed.
12.  Much of the argument before the Court on 9 September 1992 centred around
the issue of whether the case sought to be mounted in the review application
was viable.  In my opinion there is some merit in the issues sought to be
argued but I refrain from putting it any higher than that. There is no need
for me to do so.  I am satisfied that this is not a case in which it can be
said that the application is doomed to failure.
13.  In my opinion, the justice of the case requires that the time prescribed
for lodging the review application be extended to 20 August 1992 and I so
order.   I will hear counsel on the question of costs.