Ren, J.Q v Immigration Review Tribunal
[1991] FCA 828
•18 DECEMBER 1991
Re: JAMES OIZHEN REN
And: IMMIGRATION REVIEW TRIBUNAL
No. ACT G71 of 1991
FED No. 828
Administrative Law
(1991) 33 FCR 261
(1992) 110 ALR 178
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J. (1)
CATCHWORDS
Administrative Law - Application for extension of time within which to appeal under s.138 of the Migration Act 1958 (Cth) from a decision of the Immigration Review Tribunal - Whether provisions of s.138(3) preclude the Court granting an extension - Application treated as an application to extend time to institute a proceeding under Administrative Decisions (Judicial Review) Act 1977 (Cth) - Extension granted.
Migration Act 1958 (Cth), s.138
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 11
HEARING
CANBERRA
#DATE 18:12:1991
The applicant appeared in person.
Counsel for the Respondent: Mrs J. Bonsey
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The time within which the applicant may institute a proceeding under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review in respect of the decision of the Immigration Review Tribunal given on 11 October 1991 upon the applicant's application for the grant of a permanent entry permit after entry in the skilled occupation category (class 805) be extended up to and including 24 January 1992.
The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
James Qizhen Ren ("the applicant") has applied to the Court by application filed on 22 November 1991 for an extension of the time within which to challenge, for error of law, a decision made by the Immigration Review Tribunal ("the Tribunal") given on 11 October 1991. By that decision the Tribunal, pursuant to s.118 of the Migration Act 1958 (Cth) ("the Act"), affirmed a decision refusing the applicant a permanent entry permit after entry (PEPAE) in the skilled occupation category (class 805).
The basis of the decision was that the applicant was unable to satisfy one of the criteria for the grant of such a permanent entry permit, namely the criterion set out in reg.139(1)(c)(i) of the Migration Regulations. That regulation provides:
(1) Subject to subregulation 34A(2), the additional criteria in relation to a skilled occupation entry permit are the
following criteria:
...
(c) the applicant
(i) is not, and during the period of 10 years
immediately preceding the day of the application has not been, a prescribed non-citizen; and
..."
Regulation 139(2) provides that, in sub-reg.(1), "prescribed non-citizen" has the same meaning as in reg.128. The latter regulation (see reg.128(2)(b)) defines "prescribed non-citizen" to mean, so far as is material for present purposes -
"(b) where the expression is applicable in respect of a day
before the commencement of these Regulations - a prescribed non-citizen as referred to in paragraph 6A(4)(c) of the Act as in force immediately before that commencement."
The Regulations commenced on 19 December 1989. Prior to that date, s.6A(4)(c) of the Act relevantly provided:
"(4) In sub-section (1) -
...
(c) a reference to a prescribed non-citizen shall be read as a reference to -
(i) the holder of a temporary entry permit who, in connection with his application, or last
application, for a visa in respect of his travel to Australia acknowledged, in writing that he
understood and accepted that he would leave
Australia on the completion of his studies or
training in Australia;
(ii) ...
(iii) ..."
It appears that the applicant seeks to challenge, for error of law, the finding that he does not satisfy the criterion prescribed by reg.139(1)(c)(i).
As has already been mentioned the Tribunal's decision was given on 11 October 1991. It is common ground that the Tribunal forwarded to the applicant on 14 October 1991 a copy of a statement purporting to comply with the requirements of s.135(1) of the Act and that that statement was received by the applicant on 18 October 1991. The period of 28 days referred to in s.138(3) of the Act, therefore, expired on 15 November 1991.
On 11 November 1991, the applicant had forwarded to the District Registrar of this Court at Canberra by facsimile process a letter reading as follows:
"I am writing in the hope that you will accept my
application to appeal for my immigration case in your
Federal Court of Australia, Canberra.
I would prefer to go to Canberra rather than Brisbane, as
Canberra has a much better living and working environment
than Brisbane. The weather is cooler and the lifestyle
seems to be a lot more pleasant. Also, I have friends in
Canberra.
Because Canberra is the capital of Australia, I believe your
officials would be more reliable and experienced in their
work to help me in my appeal.
Thank you for your direction and assistance, and I look
forward to your reply."
The letter was not accompanied by any other documentation.
The applicant was informed by telephone on 13 November 1991 that the letter was not sufficient to institute proceedings in the Court and he was given certain advice as to the procedure to be followed. Certain correspondence followed but it was not until 22 November 1991 that the present application was filed. The application was accompanied by a draft notice of appeal.
The application for extension of time is opposed primarily on the ground that the Court has no power to grant such an extension.
Section 138 provides, in sub-s.(1), that an appeal lies to the Federal Court, on a question of law, from any decision of the Tribunal made on a review under Part 3 of the Act. The decision in question was made on a review under that Part. Sub-section (2) provides that an appeal may be instituted by the applicant for review by the Tribunal or by the Minister. Sub-section (3) provides -
"An appeal shall be instituted within 28 days after the
appellant is notified under section 135 of the decision
concerned."
The provisions of that sub-section are to be contrasted with s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) providing for an appeal to this Court, on a question of law, from a decision of the Administrative Appeals Tribunal. Sub-section 44(2A) of that Act provides that such an appeal is to be instituted not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows. The power of the Court to extend the time within which to institute such an appeal thus remains where the decision of the Administrative Appeals Tribunal is given pursuant to s.180 of the Migration Act. There are, of course, many other examples of statutory provisions prescribing time limits within which judicial proceedings are to be commenced and it is common, certainly in the area of review of administrative decisions, to include in such statutes provisions enabling an extension of time to be granted where the circumstances are such as to warrant such an extension being granted. It is surprising that such a provision was not included in the amending provisions enacted by the Migration Legislation Amendment Act 1989. The Court was referred to the explanatory memorandum relating to the Bill containing the provision which became s.64V (subsequently re-numbered s.138) of the Migration Act. It is significant that the explanatory memorandum did not advert to the circumstance that under that provision a strict time limit had been placed upon the institution of an appeal from the Tribunal with no provision for the extension of the time so fixed. Unless the result was intended by the Parliament that in no set of circumstances, whatever injustice might result, could either the applicant for review by the Tribunal or the Minister appeal from a decision of the Tribunal once the period of 28 days referred to in sub-s.138(3) has expired, it would seem desirable that the matter receive the further attention of the Parliament.
There being no power, express or implied, in the Migration Act or, so far as I am aware, in any other statute empowering the Court to grant an extension of the time within which an appeal may be instituted from a decision of the Tribunal, I am compelled to the conclusion that the present application, in so far as it seeks an extension of time to institute such an appeal, cannot succeed. I am of opinion, however, that the present application, notwithstanding that its language is more apt to an appeal under s.138 of the Migration Act, may properly be treated as an application for an extension of time within which to institute a proceeding under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") seeking an order of review in respect of the Tribunal's decision given on 11 October 1991.
It was submitted that the grounds upon which the applicant intended to rely to challenge the Tribunal's decision had no merit and that the application for an extension of time should be refused on that ground. Although I have had an opportunity to read the reasons for decision of the Tribunal, the matter has not been the subject of detailed argument and in those circumstances I do not think it appropriate that I form a judgment as to the applicant's prospects of success in seeking to have the decision of the Tribunal set aside. The period for which an extension is sought is a comparatively short one. I have also had regard to the fact that, in informing the applicant of the Tribunal's decision and of his right of appeal, the Deputy Registrar of the Tribunal did not inform the applicant that that right would be spent unless an appeal were instituted within 28 days after the notification to him of the decision, the applicant being simply informed that any such appeal "should" be made within that period of 28 days.
I have not overlooked the circumstance that, in the event of a proceeding under s.5 of the Judicial Review Act being instituted, the Court may be asked to exercise the discretion conferred upon it by s.10(2)(b)(ii) of the Judicial Review Act and refuse to grant relief under the Act on the ground set out in that provision based on the existence of the right of appeal given by s.138(3) of the Migration Act. The circumstance that that question may subsequently be raised appears to me to provide no sufficient reason why an extension of time to bring a proceeding under the Judicial Review Act should not be granted.
I extend up to and including 24 January 1992 the time within which the applicant may institute a proceeding under the Judicial Review Act for an order of review in respect of the decision of the Immigration Review Tribunal given on 11 October 1991 upon the applicant's application for the grant of a permanent entry permit after entry in the skilled occupation category (class 805).
The applicant must pay the respondent's costs of the application.
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