O'Loughlin and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 548

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2002] AATA 548

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/385

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SEAN ADRIAN O'LOUGHLIN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date5 July 2002

PlaceBrisbane

Decision The application for extension of time within which to make an application to review the decision of the Minister's delegate to issue a deportation order on 2 March 1997 is refused.

[Sgd Hon C R Wright QC]
  Deputy President

CATCHWORDS

AAT Act - application to extend time for making application to review - delay - default by solicitors - subsequent delay by applicant - discretion.

Administrative Appeals Tribunal Act 1995 – s19(1), (2) and (7)

REASONS FOR DECISION

5 July 2002 The Hon C R Wright QC., (Deputy President)  

1.      This is an application for an extension of time in which to file and serve an application for review of a deportation order.   The order was made by the Minister’s delegate on 2 March 1997 and served on the applicant on 13 March 1997.

2. Pursuant to s29(1)(d) and (2) of the Administrative Appeals Tribunal Act 1975 (“the Act’), the last day upon which the applicant could have sought review of the order, as of right, was 10 April 1997.    The application for review, lodged with the Tribunal on 3 May 2002, was therefore made more than 5 years out of time.

3.      The applicant, now aged 24 years, came to Australia with his parents from New Zealand when he was 7 years old.   His parents were Australian born, but the applicant is not an Australian citizen.   Nine years and nine months after his arrival in this country he was convicted and sentenced to 7 years imprisonment for a series of offences involving dishonesty, violence or both.   He has served 6 years in gaol.

4.      In his evidence the applicant claims that he has now seen the error of his ways.   His family all live in Australia and there is no one in New Zealand with whom he has a close relationship.    He was poorly educated when he went to prison, but has improved his literacy somewhat since then.

5.      The solicitor who acted for him in respect of the criminal charges was asked by the applicant for assistance in respect of the deportation order.   The solicitor told the applicant that he would “see what he could do”.    Follow up enquiries by the applicant after a delay of about 2 months resulted in the response that he, the solicitor, was “looking at it”.

6.      The applicant claims that he believed at that time that, even if deported, he could return to Australia as of right, being a New Zealand citizen.   In 1998 or 1999, he says, he contacted Ms Morag McDonald of the South Brisbane Immigration and Legal Service, and requested her to send to him such forms as would be necessary for him to seek a review of the Minister’s deportation decision.    He said “that he telephoned Ms McDonald on several occasions and, although Ms McDonald “kept telling me she would send them, … they never arrived”.   He became despondent and stopped ringing her, taking the view that if the Legal Service would not help him, there was no prospect of success in appealing.

7.      A letter from Ms McDonald dated 13 June 2002 (Exhibit “B”), confirms her employment with the South Brisbane Immigration and Community Legal Service Inc., and says (inter alia):

“Ms McDonald recalls providing telephone advice to Mr O’Lachlan [sic], who was ringing from a Queensland Correctional Centre.   Unfortunately, no record can be found of telephone contact”.

The letter also says that:

“… a standard letter containing information relevant in challenging a deportation order or notice of cancellation is usually sent to the person seeking advice.   We cannot confirm that the written advice was sent to Mr O’Lachlan [sic]”.

8.      Whilst not directly confirming the applicant’s version of events, this letter tends to generally confirm an important part of the applicant’s case viz. that he sought legal advice as to his predicament.    I am prepared to accept the applicant’s evidence that the assistance he sought from both legal sources was not forthcoming.

9.      The fact that a relevant failure is due to the fault of the solicitor for a party, rather than the party himself, does not, per se, provide a sufficient excuse for delay, but it is a “very material” consideration (Sophron v The Nominal Defendant (1957) 96 CLR 469 @ 474):

10.     In Zizza v Commissioner of Taxation, supra, the Full Federal Court noted that the Tribunal has frequently evaluated applications for extensions of time under section 29 by reference to the principles outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 and will grant an extension if it is proper to do so. The relevant principles are as follows:

(a)whether the applicant can show an accepted explanation for the delay;

(b)whether or not the applicant rested on his rights or took action to make the  decision- maker aware that the decision was being contested;

(c)any prejudice to the respondent that would be caused by granting an extension of time;

(d)any wider prejudice to the general public in terms of disruption to established practices;

(e)the merits of the substantial application; and

(f)fairness in granting the extension of time as between the applicant and other persons in a like position.

11.     As Wilcox J commented in Hunter’s case (supra) @ p351:

“the adequacy of an explanation for delay is intimately related to the nature of the case”.

It may also be observed that an “explanation” does not necessarily have to amount to a complete excuse.

12.     I am satisfied, contrary to the applicant’s assertion in his submitted document, “Reasons for Application”, that he did understand both the significance of the deportation order when he received it, and the explanation of its contents provided by the DIMA officer, Ms Delahunt who delivered it to him.   I am also satisfied that he appreciated the importance of acting without delay in seeking a review.   I am also satisfied that he initially acted with reasonable despatch in seeking legal advice from two separate legal practitioners, neither of whom provided the assistance which was sought.

13.     However it must be observed that his last contact with Morag McDonald appears to have been in 1998 or 1999.   No explanation has been forthcoming for the delay in making the application during the period of 3 or 4 years since that time.  This is an important matter.   He says he was discouraged by Ms McDonald’s lack of help, but this is scarcely an acceptable explanation in my view.

14.     His application for an extension of time comes very late in the day, but I find it difficult to infer any significant general prejudice to the respondent or public at large on that account.   No specific prejudice has been alleged or proved by the respondent, but it is claimed there has been “general” prejudice.

15.     Another matter to be considered is that, if the applicant’s substantive case for review lacks demonstrable merit, the extension of time should not be granted.   The question therefore arises whether I should reach such a conclusion on the facts presented to me.   I agree that the deportable offences which the applicant committed were very serious.   Their gravity is reflected in the lengthy sentences imposed, but I cannot agree with the respondent's submission that “the applicant’s criminal history indicates a high risk of recidivism”.    At the time of his incarceration the applicant was 17 years of age.   He is now 24.   No evidence of previous offences or convictions was placed before me, although the applicant admitted he had been charged with numerous disciplinary offences in gaol including assault, rioting and wilful damage to property.

16.     There is some evidence of hardship if he is returned to New Zealand in that his family are likely to remain in Australia.   However he is now a mature adult and his family members could visit him in New Zealand without apparent difficulty.   In light of their past neglect of parental responsibilities, I am very doubtful that his parents would be able to provide him with genuine guidance or emotional support in the future, but his sister, who also lives in Australia, could be a source of aid towards his rehabilitation.   There is however very little to suggest that the deportation order should be overturned on discretionary grounds if the application to review is allowed to proceed.

17.     After weighing the competing issues, I am not persuaded that the justice of the case requires that the application for an extension of time should be granted.   Significant delay remains unexplained and the substantive case advanced by the applicant for a review of the deportation decision is, at best, tenuous.    In my opinion the application for an extension of time should be dismissed and I so direct.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:         K L Miller      
  Administrative Assistant

Date/s of Hearing  14 June 2002
Date of Decision  5 July 2002

Counsel for the Applicant         Applicant appeared in person by telephone hook-up.

Counsel for the Respondent     Domenic Gallo
Solicitor for the Respondent Blake, Dawson and Waldron