Prasad, J. v Minister for Immigration, Local Government & Ethnic Affairs
[1994] FCA 397
•11 MAY 1994
JANKI PRASAD v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. VG76 of 1994
FED No. 397/94
Number of pages - 8
Migration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
OLNEY J
CATCHWORDS
Migration - Judicial review - application for extended eligibility entry permit of particular class - prescribed period for lodging application expired - application for extension of time - exercise of discretion to extend time.
Administrative Decisions (Judicial Review) Act 1977 s5(1), 11(1)(c), 13
Migration Regulations 1989, r 126(1)
Wedesweiller v Cole (1983) 47 ALR 528
HEARING
MELBOURNE, 29 April 1994
#DATE 11:5:1994
Mr T. Hurley instructed by Ravi James and Associates appeared for the applicant.
Mr A. Cavanough instructed by the Australian Government Solicitor appeared for the respondent.
ORDER
The Court Orders that:
1. The time for lodging an application for an order of review of the
decision of the respondent made on 8 October 1991 be extended to 16 March 1994.
The applicant have leave within 14 days from the date of this
order to file and serve an amended application together with such further affidavit evidence which she proposes to rely upon in support of her application.
Any further affidavit evidence on which the respondent will seek
to rely may be filed and served within 21 days from the date of this order.
The directions hearing be adjourned to 8 June 1994.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
OLNEY J The applicant wishes to make an application to the Court pursuant to s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) to review a decision of the respondent's delegate made on 8 October 1991 to refuse to grant the applicant an extended eligibility (spouse) entry permit under Reg 126(1) of the Migration (1989) Regulations. Section 11(1)(c) requires that an application for an order of review shall be lodged with a registry of the Court within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.
In the facts of the case, it is common cause that the prescribed period for the lodging of the application for order of review expired 28 days after 8 October 1991 namely on 5 November 1991. An application for an order of review and a notice of motion for extension of time were filed in the Court on 16 March 1994 something in excess of 28 months after the expiry of the prescribed period.
Although the only question presently before the Court is whether the extension of time sought should be granted, it is appropriate to briefly summarise the facts surrounding the application for extended eligibility (spouse) entry permit and the facts relating to the applicant's conduct since the subject decision was made. But before turning to the facts it is appropriate to set out the provisions of reg 126(1) in so far as they are relevant in these proceedings.
126.(1) The prescribed criteria in relation to an extended eligibility (spouse) entry permit are that, at the time when the application is decided:
(a) the applicant:
(i) is the spouse of:
(A) an Australian citizen; or
(B) an Australian permanent resident; who:
(C) was the spouse of the applicant when the application was made; and
(D) nominated the applicant for grant of the entry permit; and
(E) has a marital relationship with the applicant that is genuine and continuing; ...
The applicant is a citizen of Fiji, born on 2 April 1942. She married Jainendra Prasad (Mr Prasad) on 8 April 1965. There are three children of the marriage. The two elder children born in 1966 and 1967 live in Canada and America respectively. The youngest child, a daughter (Shandya), born on 23 May 1976, lives with the applicant. The applicant and Mr Prasad separated in 1983. The marriage has not been dissolved. Subsequent to the separation, Mr Prasad formed a relationship with a Ms Sulochana Samy (Ms Samy) who is an Australian citizen. On 21 September 1985, in Australia, Ms Samy gave birth to Mr Prasad's child, a son. Mr Prasad left Fiji and arrived in Australia on 27 May 1988. He thereupon resided with Ms Samy and on 17 October 1989 was granted permanent resident status on the basis of an on-going de facto relationship with Ms Samy.
The applicant arrived in Australia on 30 May 1990 on a visitor visa valid for six months. It is the applicant's evidence that subsequent to her arrival in Australia she again met Mr Prasad and they decided to, and did in fact, resume co-habitation, and have since continued to co-habit as husband and wife. On 29 November 1990 the applicant lodged an application for an extended eligibility (spouse) entry permit which if granted would entitle her to permanent resident status. The basis of her application was that she is the spouse of an Australian citizen or permanent resident, namely Mr Prasad, who has a marital relationship with the applicant that is genuine and continuing.
On 8 October 1991 the application was refused by a delegate of the respondent, and she was notified to that effect by a letter dated 8 October 1991. This letter was accompanied by a document described as "a resume of your claims and the departmental findings on which the decision was based". It appears from the resume that the decision-maker had formed the opinion that the applicant did not qualify on the ground that her husband's marital relationship with the applicant was not genuine and continuing and for this reason the decision-maker was not satisfied that the relationship with the applicant was exclusive. There was some evidence before the decision-maker which suggested that Mr Prasad may have had a limited continuing relationship with Ms Samy. This was denied by both the applicant and Mr Prasad.
The letter of 8 October 1991 advised the applicant that she had three options, namely, to depart Australia, to make an application for a further entry permit or to seek a review of the decision in relation to her application. In her particular circumstances she was not eligible to make a further application. In relation to seeking a review of the decision the letter said:
Certain categories of decision are reviewable. If you would like to know whether you have a right of review of the decision conveyed to you in this letter, you should contact the Migration Internal Review Office (MIRO) on 895 3888.
MIRO is an independent organisation within the Department of Immigration, Local Government and Ethnic Affairs. It will decide whether you have a right of review and if so will carry out an independent review of the original decision. A pamphlet is enclosed for your information.
On 8 November 1991 the applicant's then solicitors forwarded to the Department of Immigration Local Government and Ethnic Affairs (the department) an application for a review of the decision by an Immigration Review Panel. In response, the Migration Internal Review Office wrote on 26 November 1991 advising her that the decision on her application was not reviewable by the Migration Internal Review Office.
(It is not said in these proceedings that the advice so conveyed to
the applicant was incorrect).The applicant was interviewed by an officer of the department on 17 December 1991. Mr Prasad and their daughter Shandya were also present at the interview. The officer's record of the interview indicates that the applicant claimed at the time to have applied for refugee status or territorial asylum in Australia and that she had been granted refugee status or territorial asylum. However, no other particulars are supplied in the report and whilst it is common cause that the applicant later made an application for refugee status, there is no evidence before the Court to indicate that such an application had been made at the time of the interview. Further, it was clearly not the case that as at 17 December 1991 the applicant had been granted refugee status or territorial asylum. It is the case however, that on 17 December 1991 the applicant signed a supervised departure proposal in which she acknowledged that she was an illegal entrant as defined in the Migration Act 1958 and that she wished to be allowed to depart from Australia on a supervised basis. However, the "proposal" put forward left blank the date and the method of her proposed departure.
The applicant says that in January 1992 she lodged an application for refugee status and that the same was refused by the Refugee Review Tribunal on 13 December 1993. She says further that since that date she has been seeking advice as to whether she may be eligible under regulations, which commenced on 1 March 1994, to concessions which were foreshadowed by a ministerial announcement on 1 November 1993.
The ADJR Act does not provide any guide as to the criteria which are relevant in determining an application for extension of time under s 11(1)(c). That being the case, the Court's discretion is at large, but nevertheless must be exercised judicially. There have been many individual cases decided and in some instances judges have attempted to express the principles which should apply in the decision-making process, but no precedent can dictate the application of those principles in an individual case, the facts of which are unique.
In Wedesweiller v Cole (1983) 47 ALR 528 Sheppard J adverted to a number of decisions by other judges dealing with the considerations to be taken into account in exercising the discretion to extend time conferred by s 11, and after citing these authorities said:
I am inclined to agree with Morling J in Becerra's case (p 11 of transcript) that differences are discernible in these various decisions as to the emphasis which should be given various matters in deciding whether or not an extension of time should be granted in a particular case. But I would respectfully suggest that this is not because of any fundamental disagreement amongst judges as to the approach which should be taken, but more to the need for each judge to address himself to the particular circumstances of the case before him. I do not wish to add to what has been said except to say that there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved. In this respect I refer to what was said by Fitzgerald J in Lucic v Nolan, supra, at p 416. The discretion is vested in the court in completely unrestricted terms and no indication is given of the matter which the court is to consider. The discretion is therefore a very wide one and I would not wish to say more in case my doing so may have the effect of circumscribing in another case what the facts of that case require.
I propose to direct the following comments to the four matters referred to in the passage quoted.
First, has the delay been satisfactorily explained? The facts are that at the time she was advised of the decision, the applicant was offered three alternatives one of which was to seek internal review. She took this step in a timely manner but was found not to be entitled to that remedy. This was notified to her by letter dated 26 November 1991. The option of judicial review does not appear to have been raised by the department nor otherwise adverted to. Within three weeks she was interviewed by a departmental officer and it is quite obvious that she then had in mind an application for refugee status. Such an application was made in January 1992. Neither party has supplied the exact date on which that application was made. Given the time of the year and the nature of the application I infer that there was no undue delay after 17 December 1991 in submitting the application for refugee status. I also infer from the record of the interview on 17 December 1991 and the fact that the applicant's proposal for supervised departure did not contain any firm proposal for her departure that as at 17 December 1991 the officer concerned did not anticipate that the departure would be in the then near future, that he was aware of the impending application for refugee status and that he was content to abide the outcome of the refugee application before pursuing the question of supervised departure. It took the respondent almost two years to decide to refuse the application for refugee status. Nothing more was done by the applicant in the period intervening nor is there any reason why she should have taken any other action. Before the decision to refuse the application for refugee status was made the respondent had announced that new regulations would shortly be made dealing with the position of some failed refugee applicants. The regulations were gazetted on 4 February 1994 and came into force on 1 March 1994. By this time the applicant had new solicitors acting for her. It was clear from the new regulations that they did not advantage the applicant. Within a little more than two weeks after the new regulations came into force, the application for an order of review and notice of motion for extension of time were lodged.
If the period during which the application for refugee status is removed from the equation, the "delay" was about five months. Some of this period is accounted for by the abortive application to the Migration Internal Review Office. One would think that it was possible at the time the letter of 8 October 1991 was written for the department to have concluded that the decision was not one which was eligible for internal review and to have advised the applicant accordingly. The department's own conduct at the least gave rise to an expectation that review was an option and the time taken up by the submission of the review application and its consideration should not be held against the applicant. At no point was the applicant advised that she had the option of seeking an order of a review under the ADJR Act. Nor do I think that the applicant or her advisers can be criticised for taking two or three weeks to digest the effect of the new regulations which came into force on 1 March 1994. The regulation making process under the Migration Act is something from which the respondent and those responsible to him and his predecessors in office cannot take much pride, unless it has been their collective intention to confound and confuse potential applicants, lawyers and judges alike. If so, they have been extremely successful.
Having regard to all the circumstances of the case, I am of the view that the delay has been satisfactorily explained, and this not withstanding that the actual period from the date of the original decision to the date of the lodging of the application for review and motion for extension of time was quite substantial.
Second, what prejudice may be caused to the applicant by the refusal of an extension of time? If the extension is refused the applicant will be deprived of the opportunity to pursue whatever claim for judicial review she may have. This raises the further question as to whether the Court should take into account the applicant's prospects of succeeding on her application for review. Obviously, if the review application is in some way fatally flawed or on its face has no chance of success then the applicant will suffer no real prejudice in being denied the opportunity of pressing it. But it is not the Court's role on an application to extend time to make any definitive judgment as to the likely outcome of an application which has not been fully presented. In the present case some argument was addressed on each side to such of the evidence as has thus far been exposed and submissions were made concerning the particulars supplied in relation to the several grounds upon which the applicant seeks to rely in the review application. I do not propose to address those submissions for the reason that there is, in my opinion, at least one issue which is raised by the proposed application that does not depend upon an analysis of the evidence upon which the decision-maker relied, but which involved the construction of the regulation in relation to a matter that was central to the decision-making process.
The applicant has never sought reasons for the decision pursuant to s 13 of the ADJR Act but the resume sent to her with the letter of 8 October 1991 sufficiently exposes the reasons for the decision. In that document, under the heading "Assessment of Claims" the author states:
In assessing this application, I have considered the legislative requirements of Regulation 126. I have taken into account all the information and claims put forward by Janki Prasad and her husband to determine whether the applicant satisfies the requirements of Reg 126 a, b, c, and d.
Mrs Prasad satisfies the requirements of Reg 126 a, as she is the spouse of an Australian resident and was at the time of application. Mrs Prasad has been nominated by her husband for grant of resident status.
However I do not consider that Mrs Prasad fulfils the requirements of Reg 126 (b) which states that the nominator's relationship with his spouse is a genuine and continuing one.
PAM's guidelines on relationships state the principal elements commonly attributed to marriages are:
- a common residence
- a level of mutual support and co-operation in financial, social and domestic matters - an intention that the relationship should be lasting and exclusive.
Whilst the applicant and Mr Prasad are still legally married, I do not accept that they have never separated and that their marital relationship has been on-going since 1965. The fact that Mr Prasad has maintained a relationship with his defacto wife with the applicant's knowledge (folio 66) indicates that the relationship between the applicant and Mr Prasad is not exclusive.
(I am unaware of what the acronym PAM stands for. I presume it refers to some departmental authority who has set down guidelines for cases such as this).
In the recommendation at the conclusion of the resume the author states:
I have taken into consideration all claims put forward by the applicant and Mr Prasad. Whilst satisfying Reg 126 a, b, c, and d, Mrs Prasad does not satisfy the requirements of Reg 126(e).
It is obvious from the inconsistency in the references to subparagraphs of regulation 126 between the passage first quoted and the final recommendation that the author of the resume initially referred to regulation 126(1) as promulgated by Statutory Rules 1990 No 34 and that in the recommendation the reference was to regulation 126(1)(a)(i) which in the form quoted earlier in these reasons was promulgated by Statutory Rules 1991 No 60 and came into force on 15 April 1991. Despite this confusion, it appears that the earlier reference to "Reg 126(b)" is to the previous requirement that "the applicant's relationship with (her) spouse is genuine and continuing" which involves considerations similar to, but not identical with, those applicable under regulation 126(1)(a)(i)(E) as in force at the time the application for permit was decided.
In ground 4 of the proposed review application the applicant asserts:
The decision involved an error of law within s 5(1)(f) Administrative Decisions (Judicial Review) Act. PARTICULARS
(a) The delegate applied a concept of the term "marital relationship that is genuine and continuing" as it appeared in Reg 126(1)(a)(E) Migration (1989) Regulations, which required the marriage to be exclusive between the spouses, and did not accept that spouses could have a genuine and continuing relationship ever which (sic, presumably, even if) it was not, on the part of one spouse, an exclusive relationship.
(b) The delegate took into account the fact that Mr Prasad was not exclusive in his marriage with the applicant, and failed to take into account the fact that the applicant was exclusive in her relationships to Mr Prasad, and that thereby, there was a marital relationship that was genuine and continuing within Reg 126(1)(a)(E) Migration (1989) Regulations.
(c) The delegate gave a meaning to the term "has a marital relationship with the applicant that is genuine and continuing" which did not accept a genuine marriage relationship could exist where there was infidelity on the part of one spouse.
Without in any way seeking to canvass the arguments raised by this ground it does seem to me that it is at least arguable that in giving effect to "PAM's guidelines" rather than applying ordinary concepts to the construction of the regulation the decision-maker may have committed an error of law and thus if the applicant is correct, the basis of the decision-making process may be flawed. In these circumstances the applicant would in my opinion suffer some prejudice if she is unable to proceed with her application for review.
Third, what prejudice may be suffered by the respondent by granting an extension of time? For the respondent, counsel has pointed out the length of time which has transpired since the decision was made on 8 October 1991. Obviously, memories may have faded since that time and it is said that it may be unfair that after such a period the departmental officers should be placed in the position of being subjected to cross-examination if the application is allowed to proceed. There is some merit in this argument but not much. The material before the Court indicates that contemporaneous written records were made of interviews and conversations relating to the case and in the circumstances it seems that there would be little or no prejudice to the respondent if the matter proceeds. Indeed, a very large part of the work of this Court is conducted on evidence which relates to events reaching back far beyond two or three years.
Fourth, what does the justice of the case require? Whilst it is true that after the applicant's interview on 17 December 1991 she sought relief by way of another remedy, there is nothing to suggest that she ever abandoned her desire to seek a review of the original decision. The unexplained delay of almost two years in processing the applicant's refugee status application makes it inappropriate for the respondent to assert that the justice of the case requires that the applicant be now denied the opportunity to seek a review of the original decision. Indeed, the contrary is so. In my opinion the justice of the case requires that the applicant be granted an extension of time to permit her to bring an application for review of the decision made on 8 October 1991.
In the course of the hearing of the application for extension of time it has become apparent that the applicant may wish to seek to amend some aspects of the form of the application as filed. I think that she should have leave to file and serve an amended application within two weeks from the publication of these reasons.
There will be orders to the following effect:
1. The time for lodging an application for an order of review of the
decision of the respondent made on 8 October 1991 be extended to 16 March 1994.
The applicant have leave within 14 days from the date of this
order to file and serve an amended application together with such further affidavit evidence which she proposes to rely upon in support of her application.
Any further affidavit evidence on which the respondent will seek
to rely may be filed and served within 21 days from the date of this order.
The directions hearing be adjourned to 8 June 1994.
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