Pitman v Adminstrative Appeals Tribunal

Case [2005] FCA 1540

FEDERAL COURT OF AUSTRALIA

Pitman v Adminstrative Appeals Tribunal [2005] FCA 1540

BURN PITMAN V ADMINISTRATIVE APPEALS TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1847 of 2005

JACOBSON J
27 OCTOBER 2005
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1847 OF 2005

BETWEEN:

BURN PITMAN
APPLICANT

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

27 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time for an application for leave to appeal is refused.

2.The applicant is to pay the respondent’s costs.

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 1847 OF 2005

BETWEEN:

BURN PITMAN
APPLICANT

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE:

27 OCTOBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application for leave to appeal from a decision of Emmett J given on 30 August 2005.  On that date his Honour dismissed a notice of motion filed by the applicant on 21 June 2005.  The notice of motion sought an order setting aside orders made by Emmett J on 1 June 2005 dismissing the proceedings and ordering the applicant to pay the respondent's costs.

  2. The application for leave to appeal was filed on 30 September 2005.  Leave to appeal is required because his Honour's judgment and orders of 30 August 2005 were interlocutory. 

  3. The notice of motion for leave to appeal was filed approximately three weeks after the date provided for in order 52, rule 10(2)(b) of the Federal Court Rules.  Order 52, rule 10(2A) permits the court to grant an extension of time to file an application for leave to appeal.  The authorities establish that the court has a discretion, and the likelihood of leave to appeal being granted is a relevant consideration. 

  4. I will proceed upon the basis that Mr Pitman is seeking an extension of time and the question which I therefore have to consider is whether the applicant has any likelihood of success in obtaining leave to appeal.  Evidence of reasons for the delay are to be taken into account, see Deighton v Telstra Corporation (Unreported, Full Court of the Federal Court of Australia, 17 October 1997, Lee, Heerey and Nicholson JJ); see also Croker v Phillips Electronics Australia Limited [2000] FCA 1731.

  5. An affidavit seeking to explain the delay was filed by the applicant.  The reasons for the delay seem to be that the applicant has only recently discovered evidence to substantiate his claim that he was denied procedural fairness in the Administrative Appeals Tribunal (“AAT”) by reason of the late service of documents.

    Background

  6. The applicant was born in New Zealand and first entered Australia in 1986. He has spent most of his…

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Details
AGLC
Pitman v Adminstrative Appeals Tribunal [2005] FCA 1540
Case
[2005] FCA 1540
Decision Date

CaseChat Overview and Summary

The case of Pitman v Administrative Appeals Tribunal involved the applicant, who was born in New Zealand and had resided in Australia since 1986, challenging the decision of the Administrative Appeals Tribunal (AAT) to confirm the cancellation of his Special Category Visa by a delegate of the Minister. The applicant sought judicial review under section 39B of the Judiciary Act 1901 (Cth), claiming that the AAT failed to afford him procedural fairness due to late service of documents, which prevented him from properly preparing his case.

The primary legal issue before the court was whether the applicant's application for an extension of time to seek leave to appeal the AAT's decision should be granted, considering the applicant had not appeared in court and had withdrawn his appeal, expressing a wish to return to New Zealand. Additionally, the court had to determine if the applicant's claims of procedural unfairness were substantiated and if there was any justification for the applicant to pursue a challenge to the AAT’s decision beyond a change of heart.

The court examined the applicant's affidavit and noted that he had only recently discovered evidence to support his claim of procedural unfairness. However, the court found that the applicant had abandoned his challenge to the AAT's decision and had not presented any new evidence or legal advice suggesting that a challenge might be sustainable. The court emphasised that there was no substance to the applicant's complaints about the AAT’s decision, and the applicant had not made any submissions as to why the exercise of discretion by the Tribunal should be different.

Consequently, the court refused the application for an extension of time for an application for leave to appeal and ordered the applicant to pay the respondent's costs. The decision highlighted the importance of timely and substantiated claims in judicial review proceedings and underscored the court's stance on the need for fresh evidence or legal advice to warrant a reconsideration of a dismissed appeal.

Orders

Orders of the court

1. The application for an extension of time for an application for leave to appeal is refused.

2. The applicant is to pay the respondent’s costs.

Background

Background to the litigation

An affidavit seeking to explain the delay was filed by the applicant. The reasons for the delay seem to be that the applicant has only recently discovered evidence to substantiate his claim that he was denied procedural fairness in the Administrative Appeals Tribunal (“AAT”) by reason of the late service of documents.Background The applicant was born in New Zealand and first entered Australia in 1986. He has spent most of his life here. He was the holder of a Class 444 Special Category Visa. However, on 1 February 2005 a delegate of the Minister cancelled the visa pursuant to section 501 of the Migration Act 1958 (Cth). The reason for doing so was the applicant's substantial criminal record. The applicant sought review of the delegate's decision by the AAT. On 15 April 2005 the AAT confirmed the delegate's decision, the applicant then commenced a proceeding in this court on 6 May 2005 seeking relief under section 39B of the Judiciary Act 1901 (Cth). In that proceeding the applicant claimed that the AAT failed to afford him procedural fairness contending that he was served with a bundle of paperwork less than two days before the hearing and that he was therefore unable to conduct his case properly, to seek proper legal advice or to call the appropriate witnesses. The matter was before Emmett J for directions on 1 June 2005. The applicant did not appear and the Minister's solicitors tendered a facsimile communication from the applicant stating that he wished "to pull" his appeal and go back to New Zealand. In those circumstances his Honour at the request of the Minister dismissed the proceeding summarily pursuant to Order 35A, Rule 2(1)(b) of the Federal Court Rules. Subsequently the applicant filed a notice of motion seeking to set aside his Honour's summary dismissal. It is to be noted that at [5] of his Honour's reasons for judgment of 30 August 2005 he observed that no evidence was filed in support of the application for review of the AAT. His Honour said “in particular, there was no evidence concerning the circumstances that were claimed to give rise to procedural unfairness”. At [12] of his judgment of 30 August 2005, Emmett J observed that there was nothing before him to indicate that the applicant asked the AAT for an adjournment to enable him to give further consideration to any documents or for any other reason. His Honour also observed that a reading of the reasons of the Tribunal suggested that there was no substance at all in the applicant's complaints about the AAT’s decision. His Honour continued at [12] as follows:-“The applicant was unable today to indicate any submission that he would wish to make to the Tribunal as to why the exercise of discretion by the Tribunal should be different. The Tribunal, in its reasons, concluded that the evidence as a whole demonstrated factors as against the applicant, some of which was serious. The evidence, however, demonstrated nothing in the applicant’s favour.” His Honour then said at [13]:-“It is apparent that the applicant, as at 1 June 2005, had decided to abandon any challenge to the Tribunal’s decision based on want of procedural fairness. Nothing has happened since then to indicate a justification for wishing to pursue a challenge to the Tribunal’s decision, other than a change of heart. It is not suggested that other material has become available. Furthermore, there has been no evidence of the fresh legal advice to indicate that a challenge may be sustainable.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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