Nolan, T.W. v Minister for Immigration & Ethnic Affairs

[1987] FCA 253

P

GENERAL DISTRIBUTION NOT REQUIRED

2! 53

IN THE FEDERAL COURT OF AUSTR

VICTORIAN DISTRICT REGISTRY	)	No. VG 102 of 1987
1
GENERAL DIVISION	)

B E T W E E N :

THERRANCE WILLIAM NOLAN

Applicant

A N D :

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS AND

COMMONWEALTH OF AUSTRALIA

Respondents

22 MAY, 1987 KEELY J

REASONS FOR JUDGMENT

On 22 September 1985 the Minister for Immigration and

Ethnic Affairs (the Minister) signed an order for the

deportation of Therrance William Nolan (the applicant). On

11 October 1985 an application was lodged by the applicant

for the review of that decision by the Administrative Appeals

Tribunal. The xecution of the deportation order was,

pending the proposed hearing by the Tribunal, stayed by an

order made by the Tribunal by consent. The respondents

released the applicant from custody subject to certain

conditions, agreed to by him, as to regular reporting to the

department.

On 8 December 1985 the Minister signed a statement of

reasons for his decision pursuant to S. 37 of the

Administrative Appeals Tribunal Act 1975. It appears that

those reasons were given to the applicant's	solicitors on	or
about 11 December 1985.

In or about February 1986 the applicant failed to

report to the Minister's department in accordance with the

agreed conditions. It also appears that he did not contact

his solicitors at all during the period from late November

1985 until November 1986. In the meantime, on 4 June 1986,

his application was dismissed, there being no appearance for

him in support of that application.

The applicant now seeks, amongst other proposed orders

set out in his notice of motion, filed 4 May 1987, an order

under S. ll(l)(c) of the Administrative Decisions (Judicial

Review) Act 1977 (the Judicial Review Act) that the "period

in which the Applicant may make application for an order to

review the decision of the firstnamed respondent to deport

him ... be extended to a date to be fixed by the Court". In

the hearing of that motion it has been conceded by Mr.

Tracey, of counsel, on behalf of the respondents, that, if

the applicant is granted an extension of time then, on the

material presently before the court, the applicant has an

arguable case in support of three possible challenges, which

he wishes to make, to the deportation order. They are that

(a) the respondent Ninister, in making that order, failed to

grant procedural fairness to the applicant in relation to

certain matters; (b) S . 12 of the Nigration Act 1958, on its

true construction, did not authorise the making of the

deportation order and (c) S . 12 of the Nigration Act 1958 was

unconstitutional if, contrary to the submission in (b) above,

S. 12 did purport to authorise the order.

The applicant's case for an extension of time rested

upon three grounds. First, that he has a strongly arguable

case that the deportation order should be set aside -

referring to the three matters the subject of Mr. Tracey's

concession. Second, that there would be no prejudice to the

respondents; I accept that submission, notwithstanding Mr.

Tracey's two submissions to the contrary. One was that there was a danger of other applicants taking advantage of such a decision as a precedent. The other was that the respondents

might be prejudiced by reason of the possibility that the

recollection of any witnesses, who might be called by them,

would be likely to be less atisfactory than if the

application had been filed within the prescribed time.

The third ground for an extension of time was that the

applicant had given an adequate explanation for his delay

i.e. in not seeking to lodge an application under the

Judicial Review Act until Nay 1987 when the prescribed period

had expired in January 1986. I have carefully considered the

applicant's explanation for the delay and his reasons for

"absconding" (as the applicant described his own action)

together with the affidavit evidence of his solicitor, Mr.

Ford. In my opinion the applicant has not given any adequate

explanation for the delay.

Mr. Rose has submitted, on behalf of the applicant,

fyll rights, including his rights under the Judicial Review Act. However, any relevant lack of knowledge was a direct consequence of the fact that he had failed to communicate with his solicitor at any time between late November 1985 and	that, at the time when he absconded, he did not know of his solicitor was unable to give to the applicant the Minister's
statement of reasons (received about 11 December 1985).
Accordingly his solicitor was not given any opportunity by
the applicant to give him any advice as to the way in which a challenge to the deportation order under the Judicial Review
Act could be made, based upon an examination of the
Minister's reasons for decision.

In Hunter Valley Developments Pty. Ltd. v - Cohen (1984)

3 FCR 344 Wilcox J., at 348, after pointing out that S. 11 of

the Judicial Review Act, "does not set out any criteria by

reference to which the court's [discretion] to extend time"

is to be exercised and suggested (at 348-9) that from the

decisions of judges of the court there:-

l ' . . . may distilled be the following

principles to guide, not in any exhaustive

manner, the exercise th of 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.

Special circumstances need not be shown but the court will 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 Agricultural Co. Pty. Ltd. v

Aboriginal Development Commission (1982) 43

ALR 535 at 550). Indeed, it is the prima

facie rule that proceedings commenced

outside that period will not be entertained

(Lucic v Nolan (1982) 45 ALR 411 at 416).

I t i s a W o n d i t i o n to the exercise of

discretion in his favour that the applicant

extension for "acceptable an h w

explanation of the delay" and that it is

"fair and equitable in the circumstances'' to

extend time (Duff v Freijah (1982) 62 FLR

280 at 287; man Feilly v unreported

(Federal Court +stralla, Neaves J., 9

December 1983) at 7).

2. Action taken by the applicant, other

than by making an application for review

under the Act, is elevant the to

consideration of the question whether an

acceptable explanation for the delay has

been furnished. A distinction 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": Der Fisher J. in Do le v Chief of Scaff (19'eZ) 42 ALR 283 at

&and a case where the decision-maker was

allowed to believe that the matter was

finally concluded. Compare Do le Cha man

Ralkon and Douglas v Allen (&'l 6;

W L u c i c at 41- and V

Australian Telecommunications

1983) 48 ALR 517 at 519. The reasons for

this distinction are not only the "need for

finality in disputes" (see Lucic at 410) but

also the "fading from =v" uroblem

referred to in WeGesweiller v &	(1583) 47
ALR 528.

3. Any prejudice to the respondent

including any prejudice in defending the

proceedings occasioned by the delay is a

material factor militating against the grant

of an extension: see Do le at 207. Duff at

207, Hicke at 525-52 + an W e d e s w e i m at

533-5 T+

4. However, the mere absence of prejudice

is not enough to justify the grant	of	an
extension ...

5. merits The substantial the of

application are properly to be taken into

.account in considerins whether an extension

of time should be	granted: Lucic at 417,
Chapman at 6.
6. Considerations	of fairness as between

the applicants and other persons otherwise

in a like position are relevant to the

manner of exercise th of court's

discretion: Wedesweiller at 534-535."

In taking into account hose principles I have

considered, as matters in favour of the applicant, the

"merits of the substantial application" and the absence of

prejudice to the respondents (see principles 3 , 4 and 5).

However, I have formed the opinion on the material that it

would not be "fair and equitable in the circumstances" to

extend the prescribed time. In my opinion both the

requirements of justice and the principles summarised by

Wilcox J. support the refusal of the present application.

Specifically, applying principle (1) from the passage in the decision of Wilcox J., on all the material I am not

"satisfied that it is proper" to grant the extens ,ion of time

sought. The applicant has not shown an "acceptable

explanation of the delay". Under principle

. .

opinion "the decision-maker was allowed to believe that the

matter was finally concluded" by reason of the fact that the

applicant had absconded and his application had been

dismissed by the Admlnistrative Appeals Tribunal.

In Sinclair v The Commonwealth of Australia and Others

(unreported, delivered 10 February, 1987) Ryan J. granted an extension of time after considering a number of the decided

cases referred to by Wilcox J. in the passage quoted earlier.

Having carefully considered his Honour's reasons for

judgment, in my opinion a refusal to extend the time in the

present case would not in any way conflict with any principle

enunciated by Ryan J. His Honour's decision is

distinguishable for several reasons.

First, his Honour considered "that an adequate

explanation has been provided for the most significant

periods of delay which have occurred" (p. 13); in the present

case I	am far from being satisfied with the explanation of
delay.
Second, Ryan J. said that there was an "apparent

acceptance on both sides that no other legal remedy is

available to the applicant than the review of the

respondents' decision which is afforded by the Act" (p. 14).

In contrast, in the present proceeding it was expressly

accepted by Mr. Castan Q.C., on behalf of the applicant, that

the applicant had other remedies presently available to him

in the High Court; it was explained that it had been thought

proper to make the present application for an extension of

time before instituting any such proceeding.

Thirdly, in Sinclair's case, "[slome weight, albeit

small" was attached to "the applicant's attempts to obtain

relief by way of ministerial or executive action, and the

invitation which those attempts evoked to pursue a legal

remedy". That aspect may be contrasted with the present

applicant's failure to pursue his application in the

Administrative Appeals Tribunal or to take any other action.

For these reasons the motion for an extension of time,

set out in paragraph 3 of the applicant's notice of motion,

filed on 4 May 1987, is dismissed.

I certify this and the seven preceding pages to be a true

copy of the Reasons for Judgment of his Honour Mr. Justice

Keely

Dates of Hearing	20, 21 May, 1987
Counsel for the Applicant	Mr. A. R. Castan Q.C. and
MC. P. N. Rose

Solicitors for the Applicant	:	Juliano Ford h Co.
Counsel for the Respondent	MC. R. Tracey

Solicitors for the Respondent : Australian Government

Solicitor