McVey v Minister for Immigration

[2012] FMCA 924

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McVEY v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 924

MIGRATION – Five year resident return visa cancelled – cancellation upheld on review by Administrative Appeals Tribunal – character test – serious criminal record – whether injunction to prevent deportation within jurisdiction.

COURTS AND JURISDICTION – Federal Magistrates Court – cancellation of five year resident return visa upheld on review by Administrative Appeals Tribunal – application for injunction to prevent deportation – whether Court has jurisdiction.

PRACTICE AND PROCEDURE – Extension of time in which to file application – factors.

Administrative Appeals Tribunal Act 1975 (Cth), s.43(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Magistrates Act 1999 (Cth), s.39
Migration Act 1958 (Cth), ss.476, 476A, 477, 500, 501
Migration Litigation Reform Bill 2005 (Cth), Explanatory Memorandum

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Huynh v Minister for Immigration & Anor [2011] FMCA 404
Lindsay v Director of Professional Services Review & Ors [2011] FCA 262
McVey v Minister for Immigration & Citizenship [2012] AATA 5
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Powell & Anor v Administrative Appeals Tribunal & Anor Unreported, Federal Court of Australia, WAG 96 of 1998, French J, 20 November 1988
Zentai v Honourable Brendon O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691

E. Campbell and M. Groves “Time Limitations on Applications for Judicial Review” (2004) 32 Fed L Rev 29

Applicant: PATRICK MCVEY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 233 of 2012

Judgment of: Lucev FM

Hearing date: 4 October 2012

Date of Last Submission: 4 October 2012

Delivered at: Perth

Delivered on: 4 October 2012

REPRESENTATION

For the Applicant: Mr P McVey in person (by telephone from Perth Immigration Detention Centre)

Counsel for the First Respondent: Mr P Macliver

Solicitors for the First Respondent: Australian Government Solicitor

For the Second Respondent: No appearance

ORDERS

1. The Application for extension of time in which to file the Application, be dismissed.

2. The Application be dismissed.

3. The Applicant pay the First Respondent costs in the sum of $3239.00 within 7 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 233 of 2012

PATRICK MCVEY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. The applicant Patrick McVey is a citizen of the United Kingdom. Apart from a short holiday in Bali, he has lived in Australia since he was seven years old. He is now 50 years old. He is not an Australian citizen, but a citizen of the United Kingdom. Mr McVey has an extensive criminal history. There are 133 offences commencing in April 1976 and continuing until April 2011. In that history, custodial sentences have been imposed for various offences since 1987 as follows:

Court	Conviction Date	Offence	Sentence
Perth District Court	09.11.1987	Break, Enter and Steal (5 charges) Break and Enter Dwelling with intent (2 charges) Stealing	On each charge: Imprisonment 6 months(concurrent) Imprisonment 3 months (concurrent)
Perth Court of Petty Sessions	08.06.1991	Steal by finding Stealing Unlawful possession (3 charges)	Imprisonment 3 months Imprisonment 3 months (cumulative) On each charge: Imprisonment 3 months (concurrent)
Perth District Court	30.11.1992	Stealing Threats to Kill/Injure	Imprisonment 12 months Imprisonment 12 months (concurrent)
Perth Court of Petty Sessions	18.11.1993	Damage	Imprisonment 1 month (cumulative)
Supreme Court of Western Australia	30.05.1994	Sexual Penetration Without Consent (3 charges)	On each charge: Imprisonment 7 years (concurrent)
Rockingham Magistrates Court	18.03.2003	Drive whilst disqualified	Imprisonment 6 months (suspended for 12 months)
Perth District Court	09.12.2005	Amphetamine possess with intent Breach of Intensive Supervision Order (imposed 16.08.2004) Manufacture Prohibited Drugs	Imprisonment 2 years 6 months Imprisonment 6 months (concurrent) Imprisonment 3 months (concurrent)
Perth Magistrates Court	09.12.2005	Possess Prohibited Drug with Intent Firearm possessed no licence Possess unlicensed ammunition (2 charges) Possess weapon with Intent to cause fear Possess prohibited weapon Possess controlled weapon	On each charge: Imprisonment 6 months (concurrent) Imprisonment 3 months (concurrent) On each charge: Imprisonment 1 month (concurrent)
Rockingham Magistrates Court	18.03.2008	Drive whilst disqualified	Imprisonment 6 months 1 day (suspended for 12 months)
Perth Magistrates Court	31.03.2008	Drive whilst suspended Drive whilst disqualified	Imprisonment 7 months (cumulative) Imprisonment 6 months 1 day (cumulative)
Mandurah Magistrates Court	12.05.2009	Drive whilst disqualified Drive whilst disqualified (2 charges)	Imprisonment 9 months On each charge: Imprisonment 3 months
Mandurah Magistrates Court	17.06.2009	Drive whilst disqualified	Imprisonment 3 months
Rockingham Magistrates Court	05.08.2009	Drive whilst disqualified	Imprisonment 3 months
Perth District Court	29.03.2011	Attempt Manufacture a Prohibited Drug Burglary and Commit Offence in Dwelling	Imprisonment 2 years Imprisonment 9 months (concurrent)
Perth Magistrates Court	06.04.2011	Drive whilst disqualified Possessing stolen or unlawfully obtained property (7 charges) Possessed a prohibited weapon Possess a prohibited drug (2 charges)	Imprisonment 6 months (concurrent) On each charge: Imprisonment 6 months (concurrent) [1]

[1] The list of offences is reproduced in the Administrative Appeals Tribunal (“AAT”) Reasons for Decision: McVey v Minister for Immigration & Citizenship [2012] AATA 5 at para.11 per Hotop DP (“McVey – AAT”).

1. There are very serious criminal offences in that list, including offences of sexual penetration without consent for which Mr McVey was sentenced in May 1994, drug related offences for which he was sentenced in December 2005, and a drug related offence for which he was sentenced in March 2011. Mr McVey is a repeat offender. For example, he has eight driving whilst disqualified convictions over a period of three years from March 2008 to April 2011, each of which attracted a sentence of imprisonment of between three months and six months and one day, albeit that the first of those was suspended.

2. On 18 June 2007 an officer of the Department of Immigration and Citizenship wrote to Mr McVey. Relevantly, that letter advised as follows:

   You were informed by notices dated 5 September 2006 and 18 October 2006 that the Minister for Immigration and Citizenship (the Minister) intended to examine whether there were grounds to cancel your Resident Return BB 155 visa under subsection 501(2) of the Migration Act 1958 (the Act).

   You responded to the notice by correspondence received from you on 9 October 2006.

   On this occasion, the Minister has exercised his discretion and decided not to cancel your visa under subsection 501(2) of the Act.

   However, you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of your visa may be considered again. Consideration may also be given to refusing any future visa applications. Please note that disregarding this warning may weigh heavily against you if the Minister or a delegate considers your case in the future. A copy of section 501 of the Act is attached for your information.[2]

   [2] The terms of this letter are set out in McVey – AAT at para.78 per Hotop DP.

3. Before the AAT, Mr McVey acknowledged that he did not take the above warning seriously enough,[3] and he subsequently committed further offences. Those further offences, which occurred post June 2007, are as set out above, and include the serious drug related offence for which Mr McVey was sentenced in March 2011 to two years imprisonment, and the eight driving with disqualification offences which received the sentences of terms of imprisonment that have been referred to above.

   [3] McVey – AAT at para.78 per Hotop DP.

4. On 6 October 2011, a delegate of the Minister cancelled Mr McVey’s class BB subclass 155 visa,[4] known as a five year resident return visa, under s.501(2) of the Migration Act 1958. Section 501(2) of the Migration Act 1958 provides as follows:

   [4] “Minister’s Delegate’s Decision”.

   The Minister may cancel a visa that has been granted to a person if:

   (a)the Minister reasonably suspects that the person does not pass the character test; and

   (b)the person does not satisfy the Minister that the person passes the character test.

5. The character test is in s.501(6) of the Migration Act 1958. It sets out various circumstances in which a person does not pass the character test. Relevant, in the present case is s.501(6)(a) of the Migration Act 1958, namely that the person has a “substantial criminal record” which is defined in s.501(7)(c) of the Migration Act 1958 to include a person who has been sentenced to a term of imprisonment of 12 months or more.

6. Mr McVey applied to the AAT under s.500 of the Migration Act 1958 for review of the Minister’s delegate’s decision. After a careful and fulsome exposition of the factors and law, the AAT concluded as follows:

   The Tribunal concludes, therefore, that having regard to the totality of the primary considerations and the other relevant considerations in this case, those considerations, on balance, favour cancellation of the visa.

   In the Tribunal’s opinion, the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.[5]

   [5] McVey – AAT at paras.86 and 87 per Hotop DP.

7. The AAT went on to decide that the Minister’s Delegate’s Decision to cancel Mr McVey’s visa was to be affirmed. The AAT Reasons for Decision were handed down on 5 January 2012. On that date, and set out in annexure marked PJC1 to the affidavit of Peter John Corbold, sworn today,[6] is a copy of a letter seemingly sent by registered post on 5 January 2012 to Mr McVey. It is appropriate to read the terms of that letter. It is addressed to Patrick McVey, care of Karnet Prison Farm, Kingsbury Drive, Serpentine WA 6125:

   [6] “Mr Corbould’s Affidavit”.

   Dear Sir/Madam

   APPLICANT: Patrick McVey

   RESPONDENT: Minister for Immigration and Citizenship

   I enclose a copy of the decision that the Tribunal has made in this application under section 43 of the Administrative Appeals Tribunal Act 1975. I also enclose a copy of the Tribunal’s reasons for making that decision.

   If you think the decision is wrong you have the right to apply to the Federal Court for review of that decision.  Please note that the review is limited to certain legal errors and does not apply to errors of fact.  The Federal Court will decide if the Tribunal has made a relevant legal error in reaching its decision.  If you are considering an appeal, you may wish to obtain legal advice without delay.

   An application to the Federal Court must be lodged no later than 35 days after the date of the Tribunal’s decision.  The court may be able to extend the time in limited circumstances.

8. The letter then goes on to deal with the issue of fees, including costs if the application is unsuccessful. It then says in the final paragraph:

   For further information on applying to the Federal Court, including information about forms, court fees and costs, please see the Court’s website at or contact the Federal Court Registry in your state.  The contact details of the Court’s Registry in your state are:

   The letter then sets out the address and telephone number for the Federal Court Registry in Perth.

9. On 17 August 2012, Mr McVey sought ministerial intervention in this case and was advised on 27 August 2012 that the Minister had no power to intervene in his case. On or about 25 August 2012, Mr McVey was released from prison, then detained by officers of the Immigration Department and transferred to the Perth Immigration Detention Centre. He was, on 20 September 2012, issued with an emergency passport by the British Consulate in Perth, valid until 11 October 2012.[7]

   [7] Mr Corbould’s Affidavit, paras.14, 15 and 16.

10. On 27 September 2012, Mr McVey was issued with a notice of intention to remove from Australia, which notice advised him that it was intended to remove him from Australia on Thursday 4 October 2012. Mr McVey is presently due to be removed from Australia on a flight departing from Perth at 10:55pm tonight.[8]

    [8] Mr Corbould’s Affidavit, paras.17 and 19.

11. Almost nine months after McVey – AAT was published, that is on 3 October 2012, yesterday, and according to the application of Mr McVey, after having been advised that he was to be deported today, Mr McVey applied to this court under s.476 of the Migration Act 1958 seeking a judicial review of a migration decision, and an extension of time under s.477 of the Migration Act 1958 in which to make such application. Mr McVey did so on the following grounds:

    Flawed decision was made by the AAT in my case on 5 January 2012 because

    A.I had been unrepresented at the AAT hearing, I was incarcerated at the time the decision was handed down and until recently I was not aware of my review rights.

    B.I have been advised that I am to be permanently removed from Australia on 4 October 2012.  The removal will carry many adverse consequences for me but the most immediate effect will be to divide me from my family and my family from me.

    1.Given the harsh and immediate effects of my pending removal it would be unjust in the extreme if I were not afforded additional time to address the AAT decision.  I have not challenged the decision for reasons outlined in para 3 above.  However, I now understand the process by which I might mount such a challenge and I request an extension of time to do so.

    It is not immediately apparent what the reference to paragraph 3 above is, but the Court has assumed that it is a reference to those sub paragraphs marked A and B.

12. The orders sought by Mr McVey on an interlocutory or interim basis are as follows:

    1. Interlocutory order – release where deportation is not reasonably practicable

    2.Order to prevent removal or deportation of Applicant from Australia; and

    3.Reinstate permanent residency status from that of being unlawful in Australia.

13. The final orders that are sought by Mr McVey are an order that the decision of the AAT and Minister be quashed and an order in the nature of prohibition and/or an injunction restraining the Minister from acting upon the cancellation of the applicant’s visa. The grounds of the application as set out, essentially contend “the Minister committed jurisdictional error and the decision ultra vires” and that there was a failure to take into account a relevant consideration and a denial of natural justice.

14. In support of the application, Mr McVey filed an affidavit[9] which the Court has read, as it has also read Mr Corbould’s Affidavit filed in support of the Minister’s position.

    [9] “Mr McVey’s Affidavit”

15. It is appropriate to turn to s.476 of the Migration Act 1958. Section 476(1) and (2) of the Migration Act 1958 relevantly read as follows:

    (1)Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

    (2)The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

    (b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

16. Section 477(1), (2) and (3)(a) of the Migration Act 1958 provides:

    (1)An application to the Federal Magistrates Court for a remedy to be granted in the exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

    (2)   The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

    (a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

    (b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

    (3) In this section:

    date of the migration decision means:

    (a) in the case of a migration decision made under subsection (43)(1) of the Administrative Appeals Tribunal Act 1975 - the date of the written decision under that subsection;

17. At the outset the Minister raised a jurisdictional objection to this Court dealing with the matter, and in the course of that objection, referred to s.476A of the Migration Act 1958, which relevantly reads as follows:

    (1)Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions Judicial Review Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

    (b)  the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500.

18. The Court will deal firstly with the question of extension of time, and in the course of dealing with that will deal also with the jurisdictional issue which has been raised, as it goes to the merits of the application.

19. In Hunter Valley Developments Pty Ltd v Cohen[10] the Federal Court set out a non-exhaustive list of factors to be taken into account when considering an extension of time application.[11] Although that application was under the Administrative Decisions (Judicial Review) Act 1977 (Cth), it has subsequently been applied across various areas of Australian federal civil law.[12] Those factors are as follows:

    [10] (1984) 3 FCR 344 (“Hunter Valley Developments”).

    [11] The factors are discussed at some length in E. Campbell and M. Groves “Time Limitations on Applications for Judicial Review” (2004) 32 Fed L Rev 29 at 43-51 (“Time Limitations”).

    [12] See, by way of example, the cases referred to in Time Limitations, and Lindsay v Director of Professional Services Review & Ors [2011] FCA 262 at para.10-11 per Edmonds J (“Lindsay”).

    (a)whether or not there is an acceptable reason for the delay, where the prima facie rule that proceedings commenced outside the prescribed period of 28 days will not be entertained;

    (b)any action taken by an applicant to make a respondent aware of the applicant’s dissatisfaction with the decision prior to the substantive application being lodged;

    (c)whether or not there would be any prejudice to a respondent occasioned by any delay noting that an absence of prejudice alone is not enough to justify granting an extension of time;

    (d)the merits of the substantive application; and

    (e)considerations of fairness as between an applicant and other persons in a like position.

20. The list is not exhaustive and whether particular factors are engaged depends upon the facts of a particular case.[13]

    [13] Lindsay at para.11 per Edmonds J.

21. Looking then as to whether or not, firstly, there is an acceptable reason for delay, the applicant posited in ground A that he was not aware of his rights, and in his oral submissions that he needed a lawyer to assist him and that he had been unrepresented throughout these proceedings.

1. With respect to his not being aware of his rights, the evidence indicates otherwise. The AAT letter of 5 January 2012 spells out in clear and unequivocal terms that an application for review must be lodged to the Federal Court and not this court, and must be lodged within 35 days of the date of the AAT Reasons for Decision, and that the Federal Court may be able to extend time in limited circumstances.

2. There is no reason to suppose that Mr McVey did not receive that letter which enclosed the Reasons for Decision (McVey – AAT), of which he was aware, and which were sent to him personally at the Karnet Prison Farm, seemingly by registered post.

3. With respect to the issue of his being represented by a lawyer, the Court observes that there is no entitlement to a lawyer for any litigant, save where otherwise provided by statute, and there is no such provision in the circumstances of this case. Furthermore, it is not necessary for a person lodging an application for review of a migration decision to be represented or to have a lawyer act for them. Indeed, the filing of an application by persons in immigration detention, even those without any English or English as a second language, is a relatively common occurrence. The Court notes that Mr McVey has been in immigration detention for almost six weeks. There is simply no evidence that any step has been taken by Mr McVey with respect to an application for review of the McVey – AAT until such time as he was faced with the prospect of entering immigration detention and, latterly, being deported.

4. No steps were taken within the time prescribed for lodging an application for review of McVey – AAT. Indeed, no steps were taken for over seven and half months. It is not explained how it is that Mr McVey was able, once it evidently became apparent that he was to be released from prison and was to go into immigration detention, that he was able to seek Ministerial intervention, as he did on 17 August 2012, but was not able in the intervening six and a half months to take any steps at all to review McVey – AAT.

5. On 27 August 2012, Mr McVey was advised by the Minister that the Minister was powerless to intervene. There was no action taken following that by the applicant until yesterday. That is, at least five weeks after being advised that the Minister was powerless to intervene. And, indeed, the application yesterday was a week after the applicant was advised on 27 September 2012 that he was to be deported on 4 October 2012.

6. The Court has borne in mind that Mr McVey has been in prison and in detention. Notwithstanding that fact, the steps which have been taken have not been in accord with what Mr McVey was unequivocally advised by the AAT letter of 5 January 2012. In any event, they have been belated, and are not sufficient to suggest that Mr McVey was genuinely dissatisfied with McVey – AAT, at least until such time as it became apparent that he was being released from prison, going into immigration detention and, latterly, to be deported.

7. With respect to prejudice to the Minister, there is some minor prejudice to the Minister if Mr McVey is ultimately deported if an injunction is granted, because flights have to be reorganised, and there are the costs of ongoing immigration detention. Those factors, if not almost neutral, are very insignificant in the scheme of things in this case.

8. With respect to the merits of the case, it is relevant to note that the application is one which seeks judicial review under s.476 of the Migration Act 1958. An application properly made to the Federal Court under s.476A of the Migration Act 1958 would also be an application seeking judicial review and not merits review. And there is a boundary between those two that ought not be crossed, as was said in Zentai v Honourable Brendon O’Connor & Ors (No.3),[14] and has been averted to on previous occasions by the High Court in cases such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors[15] and Minister for Immigration & Citizenship v SZMDS.[16] It is apparent from Mr McVey’s Affidavit, and the application, that Mr McVey has not appreciated that distinction. That is hardly surprising as it is a distinction which causes lawyers, let alone self-represented litigants, some agony at various times.

   [14] (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.

   [15] (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.

   [16] (2010) 240 CLR 611 at 623-624 per Gummow ACJ and Kiefel J; [2010] HCA 16 at para.35 per Gummow ACJ and Kiefel J.

9. In this case, the distinction is immaterial because this Court does not have jurisdiction to hear Mr McVey’s application by reason of the provisions of s.476(2)(b) of the Migration Act 1958, which excludes the Court’s jurisdiction in relation to a decision such as McVey – AAT, that is on review under s.500 of the Migration Act 1958.

10. The jurisdiction to hear such applications is vested in the Federal Court under s.476A(1)(b) of the Migration Act 1958. In that regard the Court refers to the clear parliamentary intention evinced in the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth)[17] at paragraphs 8 and 9, and to the judgment of this Court to that effect in Huynh v Minister for Immigration & Anor.[18] The application therefore has no merit because the Court has no jurisdiction, the jurisdiction being vested in the Federal Court under s.476A (1)(b) of the Migration Act 1958.

    [17] “Explanatory Memorandum”.

    [18] [2011] FMCA 404 at paras.4-6 per Scarlett FM (“Huynh”).

11. The Minister quite properly referred the Court to the Federal Court judgment in Powell & Anor v Administrative Appeals Tribunal & Anor.[19] Powell is distinguishable by reason of the various amendments to the Migration Act 1958 since 1998 which, as the Explanatory Memorandum makes clear, seek to exclude the jurisdiction of this Court in matters where the AAT deals with a review under s.500 of the Migration Act 1958. In any event, even if McVey – AAT is a decision for the purposes of s.43(1) of the Administrative Appeals Tribunal Act – and in that regard the Court notes s.477(3)(a) of the Migration Act 1958 – it is still a decision which would be caught by the necessity to file an application for an extension of time.

    [19] Unreported, Federal Court of Australia, WAG 96 of 1998, French J, 20 November 1988 (“Powell”).

12. Mr McVey says in his application that he now understands the process. In submissions to the Court he resiled from that position. It is evident from the nature and form of the application being made to this Court, that he does not understand the process, and has made the application to the wrong court.

13. Upon a consideration of the factors in relation to an extension of time for Mr McVey to file this application, the application for an extension of time must be refused, as none of the factors weigh in Mr McVey’s favour. That means that the application for an extension of time is dismissed, and the application also must be dismissed.

14. The Court, as will be apparent from the foregoing reasons, is of the view that it has no jurisdiction to deal with the purported application and it would have had to have been dismissed on that basis, in any event.

15. No application was made to transfer the matter to the Federal Court under s.39 of the Federal Magistrates Act 1999 (Cth) although Mr McVey did advert to the fact that he wanted to “change jurisdictions”. The Court would not be prepared, and is not prepared, to transfer the application to the Federal Court. The application there would also be out of time, and would be the subject of the same considerations with respect to extension of time which this Court has already dealt with and rejected, save as to the issue of jurisdiction. But having read McVey – AAT, it is not apparent to this Court that any case of jurisdictional error could be made out, and, therefore, there will be no order for transfer in the exercise of the broad discretion of this Court to transfer matters to the Federal Court, even if there were an application to transfer, which there is not, because of the refusal of the extension of time application.

16. It follows therefore, that there will be orders that the extension of time application be dismissed and to the extent necessary, the application also be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  10 October 2012