Re Truong and Minister for Immigration and Multicultural Affairs
[2000] AATA 916
•20 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 916
ADMINISTRATIVE APPEALS TRIBUNAL )
) N1997/1283
) N2000/870
GENERAL ADMINISTRATIVE DIVISION )
Re TAN PHUONG TRUONG
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date20 October 2000
PlaceSydney
Decision The Tribunal does not consider that it has jurisdiction to entertain an application for reinstatement or to grant an extension of time. However, even if the Tribunal does have jurisdiction to grant an application for an extension of time, it does not exercise its discretion in favour of the Applicant. Accordingly both applications fail.
..............................................
Deputy President
CATCHWORDS
IMMIGRATION – deportation order - application for reinstatement – application for extension of time to submit further application for review where application for review dismissed – jurisdiction of the tribunal under the Administrative Appeals Tribunal Act 1975 in respect of both reinstatement and extension of time – effect of 1993 amendments to the Administrative Appeals Tribunal Act 1975 – whether assuming jurisdiction to grant another extension of time, the tribunal should exercise its discretion in favour of the applicant – Consideration of Hunter Valley principles
Administrative Appeals Tribunal Act 1975 – sections 3, 29(7), 42A
Re Bragge and Repatriation Commission (1986) 10 ALN N136
Brown v Federal Commissioner of Taxation 99 ATC 4516; (1999) 42 ATR 118; [1999] FCA 563
Comcare v A'Hearn (1993) 119 ALR 85; (1993) 18 AAR 366; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315; (1984) 3 FCR 344; (1984) 58 ALR 305
Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197; (1999) 56 ALD 349; (1999) 91 FCR 234
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; (1991) 14 AAR 42
Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537; (1990) 12 AAR 298
Zizza v Federal Commissioner of Taxation 99 ATC 4711; (1999) 42 ATR 371; [1999] FCA 848;
Flick, G A, Federal Administrative Law, 2nd edition. Sydney: Law Book Co, 1984-
REASONS FOR DECISION
20 October 2000 Deputy President J Block
(a) A Deportation Order was made by the Respondent against the Applicant on 20 August 1997. On 14 September 1997, the Applicant sought the review of that decision and applied for a stay and for an extension of time for this purpose. The Respondent did not oppose either the stay application or the application for an extension of time. On 3 October 1997 Deputy President McMahon of this Tribunal granted an extension of time until 22 September 1997.
(b) It is convenient at this early juncture to set out a brief chronological summary ("the Chronology"), (extracted for my convenience by my associate from the Tribunal file), covering the period 20 August 1997 and 13 July 2000. That Chronology reads as follows:
20 August 1997 Deportation Order issued
14 September 1997 Application for review of decision
Application for a stay
Application for extension of time2 October 1997 The Respondent does not oppose the stay and extension of time applications
3 October 1997 Deputy President McMahon extended the time for making an application until 22 September 1997 and ordered a stay of the deportation pending the decision of the Tribunal on the ultimate hearing of the application or pending further order by the Tribunal
7 October 1997 The Tribunal acknowledges Applicant's application for review
8 October 1997 Matter listed for a conference on 14 January
1998, but later brought forward until 9 December 1997
3 December 1997 Phone call to Applicant reveals that he no longer resides at the address provided to Tribunal and has left no forwarding address
9 December 1997 Applicant fails to appear at conference
11 December 1997 Matter listed for another conference on 12 February 1998 and Applicant was warned about the Tribunal's power to dismiss
12 February 1998 Applicant fails to appear at conference – referred to member for dismissal
3 March 1998 Department indicates they are trying to locate Applicant
12 March 1998 The matter is listed for a telephone directions
hearing on 26 March 1998, a hearing on 30
April-1 May 1998 and the Applicant was again
warned about the Tribunal's power to dismiss
(listing notice sent by registered mail)
19 March 1998 Tribunal receives confirmation receipt that
Applicant has received notice of directions
hearing
26 March 1998 Applicant fails to provide telephone number so
that telephone directions hearing does not go
ahead30 April 1998 Matter dismissed for failure to appear under s42A(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and Applicant is told that he can apply for a reinstatement within 28 days after receiving notification of the dismissal
23 June 1999 Department reports Applicant to the NSW
police
30 March 2000 Following the Applicant's arrest, the
Department reminds the Applicant that his
appeal to the AAT was dismissed and that he is
eligible to apply for a reinstatement andenclosed an application form. This application form was presumably not an application for
reinstatement, but the application for a review
of a decision which was eventually lodged with
the Tribunal
4 May 2000 Applicant lodges a fresh "application for review
of decision"
9 June 2000 Tribunal informs Applicant he is out of time and
sends an application for extension of time form
19 June 2000 Applicant completes extension of time form
30 June 2000 The Department opposes an extension of time
13 July 2000 Matter listed for a telephone extension of time
hearing.
(c) Another useful chronological summary was prepared by the Respondent and furnished as part of its submissions for application number N2000/870. That survey covers the period 9 November 1990 to 19 June 2000 and reads as follows:
09.11.90Applicant, a citizen of Vietnam, arrives in Australia
1992-1996Applicant convicted of one stealing offence and 2 offences for supplying drugs
05.06.96Applicant convicted of supplying drugs and sentenced to 18 months imprisonment
20.08.97Deportation Order made
16.09.97Applicant applies for extension of time for lodging application for review
22.09.97Application for review of decision filed
09.12.97First preliminary conference. Applicant fails to appear
12.02.98Second preliminary conference. Applicant fails to appear
30.04.98AAT dismissed application pursuant to s.42A(2)
17.03.00Applicant arrested and charged with supplying prohibited drugs and goods in custody
20.03.00Applicant sentenced to imprisonment for a minimum term of 1 year and four months
04.05.00Applicant applies for reinstatement of application for review of decision pursuant to s.42A(8)
19.06.00Applicant files application for extension of time for lodging application for review
(a) The Applicant was self-represented and appeared (and gave evidence) by telephone, assisted by an interpreter in the Vietnamese language. Ms Susan Fraser of the Australian Government Solicitor appeared for the Respondent. The Tribunal had before it the T Documents lodged pursuant to Section 37 of the AAT Act together with one exhibit, R1, being an application for review dated 30 March 2000. It may be noted that the reasons for the application set out therein were as follows:
REASONS FOR APPLICATION
Why do you want this decision reviewed ?
again criminal deportation (sic)
(b) On 19 June 2000, the Applicant applied for an extension of time using the prescribed form. On that form, the Applicant specified his address as 49 Church Street, Cabramatta and gave his reasons for application as follows:
Outline your reason for applying for an extension of time and for lodging your application for a review of the decision.
Did not know it had too (sic) be in before 28 days. And would like for them to review (sic) my case again so hopefully I'll get the result I hoped for
(c) The announcement in the hearing list on the day of the hearing referred to the matter both as an application for reinstatement and also as an application for an extension of time. This accounts for the fact that there are two application numbers. The matter was dealt with on the basis that there were applications both for the reinstatement of the original application (as to whether either of the applications can be so categorised is questionable) and also an application for an extension of time in respect of a further application (see in this context the Chronology from 30 March 2000 onwards).
The Applicant's evidence was in summary as follows:
(a) He was born in Vietnam in 1966. When he turned 18 he was compelled to join the Vietnamese army and after 3 months of basic training was sent to Kampuchea (Cambodia) and where he fought against the Pol Pot regime. After a period of service he, together with others, took their weapons and made their way into Thailand. He spent some years in a refugee camp in Thailand until 1990, when he was accepted into Australia as a refugee.
(b) He first lived in Brisbane but after a period moved to Sydney. He said that he fell in with bad company and as a consequence started using heroin and became an addict.
(c) The Applicant said that he needed money in order to wean himself of his addiction. He said that he did not wish to do so by breaking the law, by which he meant "bashing or robbing people" but rather became a seller of drugs. He clearly felt that dealing in drugs was somehow not reprehensible or, at the least, less reprehensible.
(d) He said that after periods of imprisonment in 1994 and 1996 he tried to rid himself of his habit through rehabilitation programmes. He said at the time of rearrest in March 2000 he had in fact managed to rid himself of his heroin habit, however, he then pleaded guilty to drug offences (of which he says he was not guilty) because he was depressed. He said that having been arrested he would have been detained in connection with his deportation order and this being so, gaol was not significantly different.
(e) The Applicant's evidence was that when he made his original application for review he was living at 49 Church Street, Cabramatta, New South Wales, and that even after he started moving from place to place, he used, and continues to use, that address as an accommodation address. It may be noted that this is the address set out in his original application (dated 14 September 1997).
(f) All the Applicant's family (including his wife) is in Vietnam. He visited his family for a period of four months in 1993/94. He said that for this purpose he used a different name because he feared the consequences of his desertion from the Vietnamese army many years previously. In reply to a question about his wife the Applicant asked "which wife?". It would seem that this contact with her over the years has been limited.
(g) T25 is a record of an interview with the applicant on 3 June 1997. It indicates that the Applicant applied for citizenship of Australia and that his application was approved. However, he did not attend the ceremony in 1994, and consequently did not become an Australian citizen.
(h) T33 is a file note by Heidi Speed of the Criminal Deportation Section of the Department of Immigration and Multicultural Affairs Department, made on 24 June 1997. It specifies that the Applicant, when he visited Vietnam in 1993/1994, did so through normal channels and that he encountered no difficulty in gaining entry to Vietnam. That statement should be considered in relation to the penultimate paragraph of that file note which notes that his current name is different from his name at birth.
It may be noted that his evidence as to names as contained in the file note may be inconsistent with his evidence before the Tribunal when he said that he used a different identity in order to enter Vietnam.
The Applicant in the course of his evidence said that he appreciated that he had made no contribution whatever to Australia, but he would do so if given a further opportunity. The Applicant has not worked in Australia, but has relied on social security since his arrival in this country. The Applicant said that he learnt English in Thailand and Australia, but he is not fluent.
(a) The Applicant's criminal record (up to 1996) appears from page 66 of the T documents and reads as follows :-
Fairfield L.C. 26.02.92 Stealing S.117/496 Fined $400
Fairfield L.C. 28.05.93 Supply prohibited drug Resist arrest 300 hours Community Service Order Fined $300
Fairfield L.C. 27.04.94 Supply prohibited drug Possess prohibited drug Fixed term 3 months. Accum from 12.06.94 Fixed term 2 months from 12.04.94
Fairfield L.C. (11.01.96) 05.06.96 Supply prohibited drug Min. term 12 months from 28.05.96. Additional term 4 months. Released subject to supvn.
Fairfield L.C. (12.05.96) 05.06.96 Supply prohibited drug Min. term 12 months from 28.05.96. Additional term 4 months. Release subject to supvn.
Fairfield L.C. (28.05.96) 05.06.96 Possess prohibited drug Min. term 12 months. Additional term 6 months
(The Tribunal notes that the reference to Fairfield LC is a reference to Fairfield Local Court. Other abbreviations do not require explanation.)
(b) As appears from paragraph 4 of the Respondent's submissions, the Applicant's whereabouts were unknown for a lengthy period. Paragraph 4 of the Respondent's submissions then proceeds as follows:
The applicant's whereabouts were unknown until 17 March 2000 when he was arrested for the supply of a prohibited drug and goods in custody. He was sentenced to imprisonment for a minimum term of 1 year and 4 months on 20 March 2000. His earliest possible release date is 19 March 2001 (footnotes excluded).
The Applicant was asked why, after seeking an extension of time in 1997, he then failed to appear at conferences leading to the dismissal of his application pursuant to Section 42A(2) of the AAT Act. He said that as a heroin addict he was constantly on the move and that he did not consider the consequences. The Respondent contends, and the Tribunal accepts, that the Applicant having previously made and been granted an extension of time must have had some knowledge of the relevant procedural statutory requirements.
As to the convictions and sentence in March 2000, the Applicant has expressed no remorse, but rather contends that he was not guilty of those offences. He said that there were three hearings and no witness, apparently a reference to a person alleged to have bought the drugs from him.
In his Statement of Reasons, in support of the making of the deportation order, Mark Sullivan, Deputy Secretary of the Department of Immigration and Multicultural Affairs said on 4 December 1997 (in paragraphs 6 and 7):
6I took into account the following factors weighing against deportation:
Mr Truong has expressed concern for his safety if he is returned to Vietnam; however, this should be viewed in light of his uneventful stay in Vietnam for over four months in 1993 to 1994.
7I found; however, that the following factors weigh in favor of the applicant's deportation:
The very serious nature of the deportable offences as prescribed by Australian Government's Criminal Deportation policy.
Mr Truong has not been employed since his arrival in Australia and has been in receipt of unemployment benefits since 1990. He has made no positive contributions to the Australian community. Mr Truong has had two periods of incarceration relating to his illegal activities. Despite the possibility that he may have some potential to make a contribution to the community, the lack of contribution weights heavily against Mr Truong.
Taking into account Mr Truong's employment history and previous criminal convictions it is assessed that the risk of recidivism is moderate to high.
iv. Mr Truong has no relatives in Australia. All his family, including his spouse, resides in Vietnam.
It will be noted that in 1997 Mr Mark Sullivan assessed the risk of recidivism as moderate to high. This assessment is born out by the subsequent convictions in March 2000. I note in this context that in accordance with the decision in Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197, I must accept the convictions and sentences in question and it is not open for me to go behind them (per Branson, Lindgren and Emmett JJ at paragraphs 45-46).
(a) Section 42A of the AAT Act reads as follows:
Discontinuance, dismissal, reinstatement etc. of application
42A (1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.
(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
(1B) If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a) if the person who failed to appear is the applicant-dismiss the application without proceeding to review the decision; or
(b) in any other case-direct that the person who failed to appear shall cease to be a party to the proceeding.(3) For the purposes of subsection (2), a person is taken to appear in person or by a representative at a directions hearing, conference, mediation or hearing of a proceeding if the person or the person's representative, as the case may be, participates in it by a means allowed under section 35A
(4) If:
(a) a person makes an application to the Tribunal for a review of a decision; and
(b) the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;the Tribunal may dismiss the application without proceeding to review the decision.
(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision.
(6) If, under this Act the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded. (Emphasis added by the Tribunal)
(7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, conference, mediation or hearing, as the case may be.
(8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41 the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(b) An application for reinstatement of the original application is competent only under subsection (9) or (10). Under subsection (8) (which is linked to subsection (9)) the application must be made within 28 days. This is different from section 29(7) of the AAT Act, which does not specify a period within which an application for an extension of time must be made. Subsection (9) is linked to subsection (8) having regard to the reference in subsection (9) to "the application". Subsection (10) is available only if the original application was dismissed in error. It was not at any time suggested that the dismissal was in any way erroneous and indeed all of the evidence before the Tribunal is to the contrary. This being so the Tribunal has no jurisdiction in respect of an application made pursuant to subsection (9) of section 42A and for the reasons set out previously, could not grant such an application under subsection (10).
(a) The Respondent contends that if the original application cannot be reinstated, then a further application is not competent.
(b) In Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537, Deputy President Forgie came to the conclusion that a further application was competent where the original application was dismissed without review. See paragraphs 28 and 29 of her decision, which read as follows:(28) It follows that the Tribunal may have exercised all of its power in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to the review of a decision. It follows that the applicant may bring a fresh application review that decision. There is some weight added to this view by the fact that there is no condition or limitation placed on the power given to the Tribunal under s43 to review a decision, ie. It is not limited to review of decisions in relation to which no application has previously been made. In adopting this view I am mindful of the words of Gaudron J in the FAI case where she said at 442: "Where a power or discretion is conferred upon a court it is inappropriate that such power or discretion be treated as subject to limitations not contained in the grant of that power or discretion. The position was put, in relation to statutory discretion by Earl Loreburn LC in Hyman v Rose [1912] AC 623 at 631 in these words: 'It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all.'"
(29) Against this interpretation, it may be said that the administration of justice is prolonged. Whether or not that is a matter for parliament. I would observe that this interpretation does not give carte blanch to any applicant whose application has been dismissed to bring endless line of fresh applications. Once the original application has been dismissed, his subsequent applications will usually be out of time. He will need to seek an extension of time and make out a case for such an extension.
(c) And in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309, President O'Connor J of this Tribunal came to the same conclusion, approving the decision of Deputy President Forgie in Re Nicholson (supra). The Tribunal refers to paragraphs 13, 14 and 15 of her decision, as follows:
(13) The issue ultimately falls to be determined under the AAT Act. The AAT Act uses the term "decision" in ss 43(1) and 34(2). Gibbs J observed in Daera Guba, supra, that the word "decision" prima facie connoted that the Land Board in that case was to make a binding determination. Whether the same connotation arises in the AAT Act is not clear; indeed, Deane J observed in Director-General of Social Services v Chaney (1980) 3 ALD 161; 47 FLR 80 at 101 that the word is clearly used in the narrow sense of the operative or ultimate decision of the Tribunal in ss 43 and 43A, but is used in a different sense in s 42. What is of greater significance is that the phrase "dismiss the application" rather than the word "decision" is used in s 42A. Had the legislature intended dismissal to have the same result as a decision it presumably would have in my view used the same language.
(14) The distinction between a decision and a dismissal of an application was raised by Deputy President Thompson in Re Nolan and Minister for Immigration and Ethnic Affairs (unreported No 3557, 29 August 1987): "Section 42A provides simply for the dismissal of an application. Such dismissal results in the termination of the proceedings on the application; consequently the decision of which review was sought remains unchanged. But no decision is made to affirm the decision under review, as may be made after the hearing of an application for review": at 2.
It follows that "the Tribunal may have exercised all of its powers in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to review that decision": Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537 at 544 per Deputy President Forgie.
(15) In my view this is an accurate statement of the effect of dismissal under s 42A. In support of this I note that if the parties consent, a decision can be affirmed. It seems unlikely that the legislature would have provided two means of obtaining an identical result and I consider that this conclusion is consistent with the purpose of the AAT Act. The Tribunal's proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act and other Acts and a proper consideration of the matters before the Tribunal permit: s 33(1)(b). The Tribunal is also required to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case: s 39. These provisions are manifestations of an underlying policy in the Act that the Tribunal should provide substantial review on the merits and not allow undue technicalities to prevent this happening.
(d) Flick's Federal Administrative Law states under the heading "Power to bring second application" at page 287 (as at Update 85) that:
The jurisdiction of the Tribunal to review a decision is exhausted by an order for dismissal and a subsequent application seeking to review the same decision is a nullity.
(e) Section 42A of the AAT Act was amended by the Administrative Appeals Tribunal Amendment Act 1993. For the sake of completeness section 42A as it was before the 1993 amendment is set out below:
Power of Tribunal to dismiss application or strike out party
42A (1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a preliminary conference held in relation to the application under section 34 or at the hearing of the proceeding, the Tribunal may:
(a) where the only other party to the proceeding is the person who made the decision - dismiss the application without proceeding to review the decision; or
(b) in any other case-direct that the person who failed to appear shall cease to be a party to the proceeding.
It is noted in particular that subsections (1A), (1B) and (5)-(10) (inclusive) were inserted by that Act. Subsection (6) states that where an application is dismissed, the proceeding to which it relates, if not reinstated, is "taken to be concluded" (emphasis added). And "proceeding" is defined in section 3 of the AAT Act so as to include "an application to the Tribunal for review of a decision".
(f) It is my view that when the statutory regime altered in 1993, so as to include reinstatement powers (exercisable in accordance with the relevant statutory provisions), the decisions in Re Nicholson (supra) and Re Mulheron (supra) became distinguishable. Subsection (6) in particular states that the proceeding is concluded if not reinstated and the definition of proceeding includes the application. This being so I do not think that a second application for review is now competent even where the original application was dismissed without a merits review. I agree with Flick's (supra) view that a second application, where the first has been dismissed, is a nullity.
(g) In case my view set out in the previous subparagraph (f) is incorrect, the remainder of these Reasons is based on the hypothesis that a further application is competent and so that if the Tribunal exercises its discretion under section 29(7) of the AAT Act, to grant an extension of time, a merits review of the further application is possible. On this basis (the validity of which is doubtful) I must then consider whether I should exercise my discretion in favour of the Applicant.
As to an extension of time generally, the non-exhaustive list of guidelines set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 at 320, are as follows:
(a) Although the section [11 of the Administrative Decision (Judicial Review) Act 1977, the equivalent of section 29(7) of the AAT Act] 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 28 days is not to be ignored (Ralkon 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). It is a pre-condition to the exercise of discretion in his favour that the application for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v Reilly (unreported), Neaves J, 9 December 1983 at 7).
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the 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": per Fisher J in Doyle v Chief of Staff) (1982) 42 ACR 283 at 287 and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen unreported, (Morling J, 3 April 1984, at 18 with Lucic at 414-15 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. The reasons for distinction are not on the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
(c) 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 Doyle at 287; Duff at 484-5; Hickey at 525-7, and Wedesweiller at 533-4.
(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at 18: Lucic at 416; Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, BecerraI at 12-13) or of established practices (Douglas at 19) is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: (Lucic at 417; Chapman at 6).
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller at 535-5).
Subsequent case law has indicated that a too-slavish attention to the Hunter Valley (supra) principles is neither necessary nor desirable, particularly in taxation cases (Hill J in Brown v Federal Commissioner of Taxation 99 ATC 4516 at 4523); that an explanation for delay is not a prerequisite albeit relevant (Comcare v A'Hearn (1993) 119 ALR 85 at 88 per Black CJ, Gray and Burchett JJ) and that one must remember that Wilcox J in Hunter Valley (supra) was concerned with a different statute.
The first question requires a consideration of the merits. Even if one puts the Applicant's case at its highest (as is required in accordance with the judgement of the Full Federal Court in Zizza v Federal Commissioner of Taxation 99 ATC 4711 at 4717 per Wilcox, Sackville and Sundberg JJ) the Applicant's case is very weak. He has been convicted on a number of occasions for offences that are regarded as very serious; recidivism is only too likely as the history of events have established, and the expectations of the Australian community would, in my view, strongly favour deportation. All of the Applicant's family is in Vietnam. Danger to the Applicant personally were he to return to Vietnam is unlikely, given the fact that he spent four months in Vietnam in 1993 and 1994.
To the extent that an explanation for delay is relevant, there is none, unless it is permissible to treat his description of himself as a heroin addict, and thus presumably not responsible for his actions, as an explanation. In the view of the Tribunal, he "treated the Tribunal and the proceedings with a casual disregard": Re Bragge and Repatriation Commission (1986) 10 ALN N136 at N137 per Deputy President Hall.
As to whether the Applicant rested on his rights, he certainly did nothing in furtherance of his application for nearly 3 years until he was rearrested. It is perhaps safer to say that during that period he simply ignored them.
As to prejudice to the Respondent and fairness as between applicants in a similar situation, it is probably correct (despite the Respondent's contentions to the contrary) that these are not in reality factors of great relevance in this case. The fact that the Respondent would be put to further trouble and expense is of marginal significance in a case such as this.
In all circumstances this is not a case which justifies the exercise of a discretion in favour of the Applicant. It is relevant to remember that when an extension was obtained for the application first applied for in 1997, he did not pursue it and it was dismissed as a result.
In summary :
(a) The Tribunal has no power to grant the application insofar as it can be categorised as an application for reinstatement. This is so because the period of 28 days prescribed by section 42A(8) has long since expired and reinstatement under section 42A(10) is available only when the original application was dismissed in error.
(b) A further application is not competent where the original application was dismissed and not reinstated. This being so an application for an extension of time is not competent.
(c) Even if (b) is incorrect this is not a proper case for the exercise by the Tribunal of its discretion in favour of the Applicant.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: .....................................................................................
AssociateDate of Hearing 13 October 2000
Date of Decision 20 October 2000
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Ms Susan Fraser,
Australian Government Solicitor
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