Metera v Administrative Appeals Tribunal - [2008] FCA 1627

FEDERAL COURT OF AUSTRALIA
Metera v Administrative Appeals Tribunal [2008] FCA 1627
ADMINISTRATIVE LAW – Procedural fairness – legitimate expectation
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – application for extension of time to file and serve an application for judicial review – whether it is ‘in the interests of the administration of justice’ to grant an extension of time – s 477A(2) of the Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Migration Act 1958 (Cth) ss 474, 476A(1)(b), 477(2), 477A(1), 477A(2), 483, 499, 500, 501
Century Metals and Mining NL v Yeomans and Another (1989) 40 FCR 564 considered
Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299 applied
Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 considered
Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 considered
Jeffers v R (1993) 112 ALR 85 considered
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 considered
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 considered
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 considered
Pomare v Minister for Immigration and Citizenship [2008] FCA 458 considered
Renton v Bradbury & Anor [2001] QSC 167 considered
THOMAS MICHAEL METERA v ADMINISTRATIVE APPEALS TRIBUNAL and MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1492 OF 2008
COWDROY J
4 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1492 OF 2008

BETWEEN:

THOMAS MICHAEL METERA
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Second Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

4 NOVEMBER 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant pay the costs of the Second Respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1492 OF 2008

BETWEEN:

THOMAS MICHAEL METERA
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Second Respondent

JUDGE:

COWDROY J

DATE:

4 NOVEMBER 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant applies for an extension of time in which to file and serve a Notice of Appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 31 July 2008. Such decision affirmed the decision of a delegate of the second respondent (‘the Minister’) to cancel the applicant’s Class TY Subclass 444 Special Category Visa (‘the visa’) under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).
FACTS
The applicant was born in New Zealand in 1967 and is a citizen of that country. Using the visa the applicant first entered Australia on 11 July 1983 when he was 16.
The applicant has a long history of criminal offences in Australia and has been convicted of a series of offences between 21 June 1983 and 1 March 2005, including…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 1627
Decision Date: 4 November 2008

CaseChat Overview and Summary

The applicant, a New Zealand citizen, sought an extension of time to appeal a decision of the Administrative Appeals Tribunal (the Tribunal) affirming the cancellation of his Special Category Visa under section 501(2) of the Migration Act 1958 (Cth). The Tribunal's decision followed a delegate's decision to cancel the visa due to the applicant’s substantial criminal record, a ground defined by the Act. The Tribunal, in its decision, considered the Ministerial Direction No. 21, which outlines considerations such as community protection, community expectations, and the best interests of the children in cases involving close familial relationships. The Tribunal concluded that the community’s protection and expectations outweighed the best interests of the applicant’s children. The applicant applied for an extension of time to file an appeal, claiming he had submitted a Notice of Appeal within the 21-day period but had used the incorrect form.

The legal issues before the court involved the interpretation and application of the privative clause in the Migration Act, specifically whether section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) applied to allow an appeal against the Tribunal’s decision. The Minister argued that the Tribunal's decision, being a privative clause decision, could not be appealed, quashed, or reviewed in any court under section 474 of the Migration Act. The court examined whether the Tribunal's decision was indeed a privative clause decision and if section 483 of the Migration Act applied, which excludes the application of section 44 of the AAT Act to such decisions. The court found that the Tribunal’s decision was indeed a privative clause decision, and therefore, the applicant’s appeal was not permissible under section 483 of the Act.

In conclusion, the court dismissed the applicant's application for an extension of time to file a Notice of Appeal. The court held that the Tribunal's decision was a privative clause decision and thus could not be appealed, quashed, or reviewed in any court. Consequently, section 44 of the AAT Act did not apply, and the applicant's appeal was barred. The applicant was ordered to pay the costs of the second respondent.

Orders

Orders of the court

1. The application be dismissed.

2. The Applicant pay the costs of the Second Respondent.

Background

Background to the litigation

The applicant applies for an extension of time in which to file and serve a Notice of Appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 31 July 2008. Such decision affirmed the decision of a delegate of the second respondent (‘the Minister’) to cancel the applicant’s Class TY Subclass 444 Special Category Visa (‘the visa’) under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).FACTS The applicant was born in New Zealand in 1967 and is a citizen of that country. Using the visa the applicant first entered Australia on 11 July 1983 when he was 16. The applicant has a long history of criminal offences in Australia and has been convicted of a series of offences between 21 June 1983 and 1 March 2005, including larceny, motor vehicle theft, assault, aiding and abetting, armed robbery with an offensive weapon, common assault and break and enter. The applicant has been sentenced to periods of imprisonment in respect of several of such convictions. On 30 November 1992 the applicant received a warning from the Minister that he risked deportation if convicted of any further offences. On 29 August 2007, following convictions for further offences, a delegate of the Minister sent to the applicant a notice of intention to consider cancellation of the visa. On 19 January 2008 a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(2) of the Act on the ground that the applicant did not pass the character test. The character test is defined in s 501(6) of the Act. A person does not pass the character test if, inter alia, ‘the person has a substantial criminal record (as defined by subsection (7))’: see s 501(6)(a) of the Act. Section 501(7) provides that a person has a ‘substantial criminal record’, if, inter alia, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)), or the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions) where the total of those terms is two years or more (s 501(7)(d)). The applicant does not dispute that he does not pass the character test. The applicant applied to the Tribunal for a review of the delegate’s decision on 11 February 2008. However as the application was made outside of the nine day time limit prescribed by s 500(6B) of the Act the Tribunal dismissed the application on the ground of lack of jurisdiction. Subsequently, as a result of this Court’s decision in Pomare v Minister for Immigration and Citizenship [2008] FCA 458, the applicant was renotified of the decision to cancel the visa on 8 May 2008. The applicant then reapplied to the Tribunal for a review of the delegate’s decision on 14 May 2008. THE TRIBUNAL DECISION In its reasons for decision the Tribunal referred to the ‘Visa Refusal and Cancellation under Section 501 of the Migration Act – Direction No. 21’ made by the Minister under s 499 of the Act (‘Ministerial Direction No. 21’). Such Direction sets out three primary considerations which a decision-maker is required to address, namely:(a)the protection of the Australian community, and members of the community;(b)the expectations of the Australian community; and(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interest of the child or children.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COWDROY J

The applicant applied to the Tribunal for a review of the delegate’s decision on 11 February 2008. However as the application was made outside of the nine day time limit prescribed by s 500(6B) of the Act the Tribunal dismissed the application on the ground of lack of jurisdiction. Subsequently, as a result of this Court’s decision in Pomare v Minister for Immigration and Citizenship [2008] FCA 458, the applicant was renotified of the decision to cancel the visa on 8 May 2008. The applicant then reapplied to the Tribunal for a review of the delegate’s decision on 14 May 2008. THE TRIBUNAL DECISION In its reasons for decision the Tribunal referred to the ‘Visa Refusal and Cancellation under Section 501 of the Migration Act – Direction No. 21’ made by the Minister under s 499 of the Act (‘Ministerial Direction No. 21’). Such Direction sets out three primary considerations which a decision-maker is required to address, namely:(a)the protection of the Australian community, and members of the community;(b)the expectations of the Australian community; and(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interest of the child or children. In applying Ministerial Direction No. 21 the Tribunal gave detailed consideration to the factual circumstances surrounding the applicant’s family arrangements, the best interests of his children and the interests and expectations of the community. Having done so, the Tribunal concluded that ‘the strength of community protection and expectations’ outweighed the best interests of the children. By its judgment delivered on 31 July 2008 the Tribunal affirmed the delegate’s decision.APPLICATION BEFORE THIS COURT The applicant wishes to challenge the Tribunal decision in this Court. The applicant claims that he filed a Notice of Appeal within 21 days of the Tribunal’s decision but that he used the wrong form for this purpose. The applicant claims that ‘when the correct form was used’ the time in which to appeal had expired. The applicant filed an Application for Extension of Time to File and Serve a Notice of Appeal on 19 September 2008. The applicant filed a draft Amended Notice of Appeal on 14 October 2008. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) makes provision for appeals to this Court from decisions of the Tribunal. Pursuant to s 44(1) of the AAT Act, a party to a proceeding before the Tribunal may appeal a Tribunal decision to this Court on a question of law. The Tribunal decision was made under s 500 of the Act. The Minister submits that such decision is a privative clause decision and accordingly, pursuant to s 474 of the Act, it cannot be challenged, appealed against, reviewed, quashed or called in question in any court. The Court upholds such submission. It follows that s 483 of the Act applies. Such section provides:Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions.

Ratio Decidendi

Legal Principle Established

Established by: COWDROY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1492 OF 2008

JUDGE:	COWDROY J
DATE OF ORDER:	4 NOVEMBER 2008
WHERE MADE:	SYDNEY

JUDGE:	COWDROY J
DATE:	4 NOVEMBER 2008
PLACE:	SYDNEY