Ruffell Pty Ltd and Minister for Immigration and Multicultural an D Indigenous Affairs
[2003] AATA 356
•17 April 2003
CATCHWORDS – IMMIGRATION
– decision to refuse visa because did not pass character test – visa applicant in migration zone – application to extend time to lodge application for review of decision – whether power to extend time – whether decision notified in accordance with s. 501G(1) of the Migration Act 1958 – whether account must be taken of s. 501G(2) – whether notice of decision accompanied by G documents – whether notified in accordance with s. 501G(1) when G documents received by applicant – no power to extend time – application refused.
Migration Act 1958 ss. 477, 500, 501 and 501G
Migration Regulations1994
Administrative Appeals Tribunal Act 1975 ss. 27 and 29
Re Assi and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 106
Hall v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 415
Tasker v Fullwood [1978] 1 NSWLR 20
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Accident Compensation Commission v Murphy [1988] VR 444
Howard v Boddington [1877] 2 P D 203
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318
VKAC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1418
Re Portman and Development Allowance Authority (1994) 36 ALD 357
Todhunter v Attorney-General (Cth) (1994) 124 ALR 442
Todhunter v United States of America (1995) 57 FCR 70
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305
Comcare v A’Hearn (1993) 45 FCR 441
Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619
Dickinson v Comcare (1998) 52 ALD 86
Maynard v Secretary, Department of Social Security [1993] FCA 698
Bouvet v Secretary, Department of Social Security [1992] FCA 216
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Walker v Wilson (1991) 99 ALR 1
DECISION AND REASONS FOR DECISION [2003] AATA 356
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2003/287
GENERAL ADMINISTRATIVE DIVISION )
Re RUFFELL PTY LTD
trading as RUFFELL FAMILY JEWELLERS
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 17 April, 2003
Place: Melbourne
Decision:The Tribunal refuses the applicant’s application for an extension of the time within which it might lodge an application for review of a decision of a delegate of the respondent dated 19 November, 2002.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 17 March, 2003, the applicant, Ruffell Pty Ltd trading as Ruffell Family Jewellers (“Ruffell”), applied for an extension of the time within which it might apply for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”). That decision was dated 19 November, 2002 and given to Mr Michel Elia Assi on 20 November, 2002. It refused Mr Assi’s application for a subclass 119 Regional Sponsored Migration Scheme visa (“subclass 119 visa”) on the basis that he had not passed the character test under s. 501 of the Migration Act 1958 (“the Act”). Ruffell had been Mr Assi’s sponsor for the visa.
At the hearing, Ruffell was represented by his solicitor, Mr Gerkens, and the Minister by his solicitor, Ms Greaves. Regard was had to the documents lodged pursuant to s. 501G(2) of the Act (“G documents”) in the matter of Re Assi and Minister for Immigration and Multicultural and Indigenous Affairs (V2002/1272) and to the affidavit of Mr Gerkens sworn on 18 March, 2003.
THE ISSUES
The first issue in this case is whether the time within which an application may be made to the Tribunal can be extended. If it can be extended, the second issue is whether it should be extended.
BACKGROUND
Although now living in Australia, I find that Mr Assi was not in the migration zone when he applied for a visa. He was living in Cyprus. He lodged his application in the office of the Australian Consulate-General in Auckland in New Zealand. His application was referred to the Australian Embassy in Beirut as that was the office closest to Mr Assi’s place of residence. The letter notifying him of the decision, began by referring to his application for a visa and went on to tell him that a decision had been made to refuse to grant him a visa in accordance with s. 501 of the Act. Reasons for the decision were attached. The letter went on to advise him:
“This decision is not reviewable by the Migration Review Tribunal (MRT). The decision can only be reviewed by the Administrative Appeals Tribunal (AAT). The AAT is an independent body and has the power to affirm, vary or set aside this decision.
You should read ‘Information About Review Rights for Visa Applicants Refused Under Section 501 of the Migration Act 1958’. A copy of that document is enclosed.” (T documents, page 90)
The document enclosed in the letter and entitled “Information About Review Rights for Visa Applicants Refused Under Section 501 of the Migration Act 1958” sets out information relating to applying for review, the time limits that apply and the effect of ss. 500(6A) to (6L) of the Act. It also set out a section headed “Who can apply for review?” It stated:
“If you are in the migration zone, ie Australia, then you can apply to the AAT for review of this decision if you would have been entitled to seek review in the MRT or the RRT on a ground other than under section 501.
If you are not in the migration zone, ie not in Australia, then:
only you sponsor or nominator is entitled to apply for review. The sponsor or nominator must be an Australian citizen or permanent resident, a company or partnership that operates in the migration zone or a New Zealand citizen who holds a special category visa;
in the case of a visitor visa, a parent, spouse, child, brother or sister may apply for review if they are Australian citizens or permanent residents, and their names and details were included in the visa application form.
The AAT cannot review decisions to cancel or refuse the grant of a visa under s501 if made by the Minister for Immigration and Multicultural Affairs personally.” (T documents, page 96)
Mr Assi was a person who was in Australia at the time the decision was made, the provisions of s. 501G were applicable. When notice of the decision was given to him, it had to be accompanied by two copies of every document, or part of a document, that was in the delegate’s possession or control, that was relevant to him and that did not contain non-disclosable information (s. 501G(2)) (“G documents”). There was no dispute between the parties that the Minister did not comply with the requirements of s. 501G in relation to the decision he made refusing Mr Assi’s visa. The delegate did not send the G documents, or the documents from which the G documents were prepared, to the Minister’s solicitors until some time after the delegate’s decision was given to Mr Assi. They were ultimately filed on 20 December, 2002, some one month after he was given the decision.
On 21 November, 2002, Mr Assi lodged an application for review of the Minister’s decision. In my decision in the matter of Re Assi and the Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 106, I concluded that Mr Assi could not himself apply for review of the Minister’s decision as he was outside the migration zone. An application could, however, be made by the employer who had nominated him for an appointment as an Antique Restoration/Manufacturer (Jeweller) in its business. That employer was Ruffell and it had been approved by an instrument dated 26 February, 2001 made under the Migration Regulations1994 (“the Regulations”) as a sponsor for the nominated position Antique Restoration/Manufacturer (Jeweller).
In Re Assi and Minister for Immigration and Multicultural and Indigenous Affairs, I set out the provisions of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) and of the Act giving the Tribunal jurisdiction to review the Minister’s decision. I will not repeat them. Section 27 of the AAT Act is also relevant and s. 27(1) of that section provides:
“Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.”
As Mr Assi’s sponsor, Ruffell is a person whose interests are affected by the Minister’s decision refusing Mr Assi’s application. Therefore, Ruffell may make an application in the Tribunal for review of that decision provided it otherwise complies with the provisions of the AAT Act and of the Act.
Under s. 29 of the AAT Act, a person generally has 28 days in which to lodge an application for review of a decision (AAT Act, s. 29(1)(d) and (2)). He or she may seek an extension of that time limit (AAT Act, s. 29(7)). When a decision made under s. 501 relates to a person in the migration zone, ss. 29(1)(d) and (7) are among those provisions of the AAT Act that do not apply to the application for review. That is the effect of s. 500(6B) of the Act, which provides in part that:
“… an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). …”
In so far as it is relevant, s. 501G(1) provides:
“If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:
(a)refuse to grant a visa to a person; or
(b)cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d)specifies the provision under which the decision was made and sets out the effect of that provision; and
(e)sets out the reasons (other than non-disclosable information) for the decision; and
(f)if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i)states that the decision can be reviewed by the Tribunal; and
(ii)states the time in which the application for review may be made; and
(iii)states who can apply to have the decision reviewed; and
(iv)states where the application for review can be made; and
(v)in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi)sets out such additional information (if any) as is prescribed.”
I have referred to s. 501G(2) above but will set it out in full:
“If the decision referred to in subsection (1):
(a)was made by a delegate of the Minister under subsection 501(1) or (2); and
(b)is reviewable by the Administrative Appeals Tribunal; and
(c)relates to a person in the migration zone;
the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:
(d)is in the delegate’s possession or under the delegate’s control; and
(e)was relevant to the making of the decision; and
(f)does not contain non-disclosable information.”
Sub-section 501G(4) provides that “A failure to comply with this section in relation to a decision does not affect the validity of the decision”.
CONSIDERATION
Was Mr Assi notified of the decision in accordance with s. 501G(1)?
The effect of s. 500(6B) of the Act is that the time within which Ruffell must have lodged its application was “… within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1) …”. If the decision was not notified in accordance with s. 501G(1), the validity of that decision is not affected for that reason. That is the effect of s. 501G(4). That provision, however, does not go on to deem a decision to have been notified in accordance with s. 501G(1) if it was not. That leaves open the question whether the decision notified to Mr Assi was notified in accordance with s. 501G(1).
Referring to principles referred to by Finkelstein J in Hall v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 415, Mr Gerkens submitted that the words requiring notification of the decision “in accordance with s. 501G(1)” should be construed strictly in view of the very serious consequences that flow from a person’s failing to lodge an application within the nine day time limit imposed by s. 500(6B). I agree with that submission. Having regard to the context of the Act in general and the words of s. 500(6B) in particular, I see no reason to adopt meanings of the expression “in accordance with” different from those adopted in Walker v Wilson (1991) 99 ALR 1. That is to say, it means “not inconsistently with” (per Brennan J, page 5) or “in conformity with” or “consistently with” (per Deane, Dawson, Toohey and McHugh JJ, page 11).
I also agree with Ms Greaves’ submission that s. 500(6B) refers only to the notification of the decision’s being in accordance with s. 501G(1).. It does not refer to its being in accordance also with s. 501G(2). While that is so, I do not agree with her further submission to the effect that s. 501G(2) is not relevant in considering whether or not notification has been in accordance with s. 501G(1).
Section 501G(1) sets out the manner in which decisions under five provisions of the Act are to be notified to a person who has been refused a visa or whose visa has been cancelled. In the case of a decision under ss. 501(1) or (2), s. 501G(1)(f) provides for an additional requirement and that is that the notice must contain information about the person’s review rights. Section 501G(2) also relates to decisions under ss. 501(1) or (2) but only if those decisions also relate to a person in the migration zone. It specifies the documents, which I have referred to as the G documents, that must accompany the notice in that case. In doing so, it is elaborating upon what is required of a notice given under s. 501G(1). That is to say, when a decision relates to a person in the migration zone, the manner in which it is to be notified can only be ascertained by reading both ss. 501G(1) and (2). Section 501G(2) elaborates upon the requirements of s. 501G(1) in those circumstances just as s. 501G(1)(f) does so in a different set of circumstances. On the face of the section, therefore, notice of a decision cannot be given in accordance with s. 501G(1), when that decision is a decision under ss. 501(1) or (2) in relation to a person in the migration zone, unless the notice complies with s. 501G(2).
I have considered whether the principles set out by Finkelstein J in Hall v Minister for Immigration and Multicultural and Indigenous Affairs have any relevance. His Honour was considering the validity of an application when the applicant had not also lodged documents mentioned in s. 500(6C). Referring to the principles in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 as affirmed by the High Court in Project Blue Sky Inc v AustralianBroadcasting Authority (1998) 194 CLR 355, he said that his task was to determine whether Parliament intended a failure to lodge with the Tribunal the documents mentioned in s. 500(6C) to invalidate the application under s. 500(6B).. That task was not at an end simply because the Parliament has said that the requisite documents must accompany the application and he referred to Accident Compensation Commission v Murphy [1988] VR 444 at 448. How the task should be approached was explained in Howard v Boddington [1877] 2 P D 203 at 211by Lord Penzance:
"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look at the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory."
Finkelstein J added that it is also important to consider the consequences of a failure to adhere strictly to the requirements of the Act.
It seems to me that these principles are not applicable in this case. I am not concerned with the validity of the decision. What I am concerned with is the imposition of a time limit. Parliament has expressly chosen the time from which time will run and that is expressed as being “within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)”. Neither s. 501G nor s. 500 makes any provision to the effect that the time limit is to prevail regardless of whether or not there has been a failure to comply with s. 501G in relation to the decision. In this regard, the treatment of the time limit is in stark contrast to the treatment of the validity of the decision. As I have previously observed, s. 501G(4) provides that “A failure to comply with this section in relation to a decision does not affect the validity of the decision”.. It does not go on to state that a failure to comply with the section has no effect on the time limits that are prescribed in the Act. It seems to me that the words of s. 500(6B) means what they say and that the nine day time limit is measured from the time at which the person was notified of the decision in accordance with s. 501G(1).. If the person was not notified in that way, and that includes a requirement that he or she be given the G documents, that time limit cannot have any application.
Although I do not think it necessary to do so, I have also had regard to matters other than the Act’s express provisions. The first is the structure of the provisions relating to the review of decisions. As Gray J characterised the scheme of ss. 500(6A) to (6L) of the Act in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318 (Gray, RD Nicholson and Stone JJ), it is directed towards ensuring that the Minister has advance knowledge of an applicant’s case and so has the capacity to answer it (paragraph 27).
Documents that are in the possession of the Minister and that are available to the applicant are the G documents and, if ordered by the Tribunal, documents it requires the Minister to provide under s. 501(6K). Other documents may be available to the Tribunal under s. 501(6F) but they are not disclosable to the applicant. Against this background, an applicant cannot rely on oral or written evidence unless he or she has, two business days before the hearing, given the Minister a copy of the written material or a copy of a written statement of the oral evidence (ss. 500(6H) and (6J)). Should the Minister choose to lead evidence at a time that does not allow an applicant to answer it within that time limit, the effect of the judgement of Gray J, with whom RD Nicholson and Stone JJ concurred, in Goldie v Minister for Immigration and Multicultural Affairs is that he may do so for that is consistent with the scheme of review established by Parliament. Given the constraints under which an applicant must prepare and present his or her case and given the serious consequences that attend the application for the person who is the subject of the decision, whether or not the applicant for review, the requirements of s. 500(6B) must be construed strictly as I have done.
Ms Greaves referred also to the judgement of Ryan J in VKAC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1418. The Minister had given VKAC a copy of a departmental briefing paper and not a statement of reasons as required by s. 501G(1)(e). His Honour considered whether the time limit set by s. 477(1) had begun to run when there had not been compliance with s. 501G(1)(e). Section 477(1) provides:
“An application to the Federal Court under section 39B of the Judiciary Act 1903 for:
(a)a writ of mandamus, prohibition or certiorari; or
(b)an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.”
Ryan J said that:
“…the provision of a document in purported compliance with s 501G which did not set out the Minister's reasons for cancelling a visa does not entail that there is no decision of which the applicant has been notified so that the time stipulated by s 477(1) of the Act does not commence to run. Accordingly, if non-compliance with s 501G were the only basis for the application to this Court I would be persuaded to uphold the Minister's objection to competency and to dismiss the application forthwith.” (paragraph 13)
His Honour’s conclusion in that case is not, in my view, applicable to the case I must consider. Section 477(1) refers only to the “notification of the decision”. A notice that purports to be given in accordance with s. 501G(1) but in fact is not in compliance can still be a notification of a decision as required by s. 477.. That was the issue considered by Ryan J. It is not a notice that is given in accordance with s. 501G(1) and that is the issue with which I am concerned for it is what is required by s. 500(6B).
What was the notification of the decision relating to Mr Assi? It was notified to him in the letter dated 19 November, 2002. The decision to which s. 501G(1) refers is, in the context of this case, a decision under s. 501(1). That sub-section provides:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
The notification given to Mr Assi must refer to that decision and each of the requirements specified in s. 501G(1) must relate to that decision. When regard is had to the whole of the letter dated 19 November, 2002, including its attachments, the notification complies with all of the requirements set out in s. 501G(1)(c) to (f).. It sets out the decision, specifies the provision under which it was made and the effect of that provision, sets out the reasons and set out Mr Assi’s right to have the decision reviewed by the Tribunal.
As I have said, it must also comply with the requirements of s. 501G(2) as Mr Assi was a person in the migration zone. That raises the question whether or not the notice was “accompanied by” the G documents. The meaning of the words “accompanied by” were considered by Bulley J in Re Portman and Development Allowance Authority (1994) 36 ALD 357. He did so in the context of a provision that an application, in the form of form 1, to the Development Allowance Authority (“DAA”) must be accompanied by a report in form 2 provided for by the Development Allowance Authority Act 1992. The facts were summarised in the headnote:
“…
B Pty Ltd was at the material time a wholly owned subsidiary of Diversified Mineral Resources NL (DMR). On 30 December 1992, on letterhead of DMR, a duly completed form 1 was sent to DAA with B Pty Ltd noted on the form as the applicant. The letter also advised that the form 2 would be sent by facsimile. DAA received the letter enclosing the form on 31 December 1992 and acknowledged receipt of the letter to B Pty Ltd by facsimile on 31 December 1992.
A consultant was engaged by B Pty Ltd to prepare and submit the form 2 for B Pty Ltd's project and the consultant faxed the relevant report on 31 December 1992 to the DAA. The consultant then sent the hard copy by courier to a director of B Pty Ltd. The DAA acknowledged receipt of the faxed documents. Nobody from DAA advised the consultant that the facsimile was unacceptable or requested further information in respect of form 1.
By letter dated 4 January 1993, the director of B Pty Ltd who received the original form 2 from the consultant, sent it to the DAA. By a letter dated 25 March 1993, the DAA advised the chairman of B Pty Ltd that the application was refused on the basis that form 2 was received after 1 January 1993 and that it did not accompany form 1 prior to the cut off date (the decision).” (page 357)
It was submitted by the respondent that the words “accompanied by” must, in their ordinary meaning, imply that two documents must be sent contemporaneously or attached. Bulley J considered two cases in which the words had been considered, albeit in different contexts:
“(59) The phrase ‘accompanied by’ has received some judicial discussion in the past. Recently Spender J considered the meaning of that phrase in an extradition appeal in Todhunter v Attorney-General (Cth) (1994) 124 ALR 442. The phrase was used in an article of a treaty as amended by a Protocol. At 452-4 of the report the following appears in his Honour's judgment:
The applicant's submission is that the documents contemplated by the new Art XI(2), XI(3) and XI(4) will only be admissible under the new Art XI(5) if they ‘accompany’ an extradition request, and that documents can only properly be described as ‘accompanying’ a request if they are supplied by the extraditing country at the same time as the extradition request is made.
Exhibit 2 is sealed on 16 December 1992. Exhibit 3 is sealed on 8 January 1993. The date on the extradition request was 30 December 1992 and therefore at least Ex 3 could not have accompanied it in the sense contended for by the applicant. Further, it was submitted by the applicant that the onus of showing that documents accompanied the extradition request is upon the extraditing country and, in the absence of evidence to the contrary, the court ought not make a finding that the documents did accompany the extradition request.
I note first that Art XI as enacted in the old regulations in paras 2, 3 and 4 uses the phrase ‘accompanied by’. The new Art XI in paras 2, 3 and 4 uses the phrase ‘supported by’.. However, cl 5 in the new Art XI commences ‘The documents which accompany an extradition request shall be received and admitted...’.
I do not accept that ‘accompany’, when used in cl 5 of the new Art XI is to be construed as if it meant ‘are supplied contemporaneously with’.
The magistrate rejected the submission on behalf of Mr Todhunter that the word ‘accompany’ in Art XI(5) means ‘to go with’ or ‘to go together’. The magistrate noted that ‘it was clear...that the documents in Ex 3 did not go with the extradition request on 30 December 1992’. He said:
‘The dictionary meaning of “accompany” is “supplement (a thing with); go or to be put or be found with, escort, attend, (of thing), co-exist with, characterise”. The Australian Concise Oxford Dictionary 7th ed.
…
‘The first meaning subscribed to “accompany” was “supplement”.
‘The verb “supplement” means “make supplement to”.
‘The noun “supplement” means: “Thing added to remedy deficiencies; part added to book et cetera with further information or to periodical for treatment of particular matter”. The Australian Concise Oxford Dictionary 7th ed.
‘It is in this sense in my view that the word accompany is used in subpara (5).’
I agree.
Article XIII(1) of the treaty, as amended by Art 9 of the Protocol, provides:
‘If the requested State requires additional information to enable it to decide on the request for extradition, that State may request that such information be furnished within such period as it specifies.’
As counsel for the respondent pointed out, if the applicant's submission was correct and everything had to occur contemporaneously, additional material provided pursuant to Art XIII(1) would be inadmissible.
For the applicants, reliance was also placed on Art XII(4) of the treaty and Art X11(4) as amended by Art 8 of the Protocol, which require the discharge from custody of a person provisionally arrested if the requested State has not received ‘the formal request for extradition and the supporting documents required by Art XI’ within the time specified in the new Art XII(4), or if ‘a request for his extradition accompanied by the documents specified in Art XI has not been received’, under Art XII(4) of the treaty.
It is to be noted that the word describing documents is ‘supporting’ and not ‘accompanying’, and it seems to me that there is no necessary contemporaneity required in receipt by the requested State of the formal request for extradition and receipt by the requested State of the supporting documents required in Art XI. If at the expiration of 60 days from the date of arrest those documents have not been received, the effect of Art XII(4) is that the person provisionally arrested is required to be discharged from custody.
In my opinion, the word ‘accompany’ is not used in the narrow sense for which Mr Porter contends. In my opinion, Art XII(5) is concerned solely with the admissibility into evidence of documents which are advanced in support of the extradition request at the extradition hearing.
His Honour went on at ALR 455, inter alia, to consider the judgment of the Full Court of the Federal Court in Winkler v Director of Public Prosecutions (1990) 94 ALR 361. In particular, reference was made to part of the joint judgment of Wilcox and O'Loughlin JJ at 378 which included the following:
... but we have no difficulty with the proposition that the phrase ‘accompanied by’ is sufficiently elastic to include all material submitted at about the time of the request and before the expiration of any relevant cut-off date; for example, a date by which, in the absence of the documents, the fugitive must be set a liberty...
These comments, with respect, seem to me to have relevance to the context of ‘accompanied by’ in s 28(4) of the Act.
Spender J went on to say in Todhunter, supra, at ALR 456 as follows:
In my opinion, the expression ‘accompany’ in the context of the new Art XI does not have the strict temporal connotation urged by the applicant. It seems to me, with respect, that this view is supported by Winkler..
His Honour then went on to note a divergence of views in Winkler as to the limits to the temporal flexibility of the expression, and at ALR 456 stated:
However, whatever the appropriate limits might be, in this case the relevant documents arrived relatively close in time to the time of the arrival of the request for extradition. Exhibit 2 is dated 16 December 1992. Ex 3 is dated 8 January 1993. The request for extradition is dated 30 December 1992.
In the circumstances, it is, in my view, correct to describe Ex 2 and Ex 3 as documents which ‘accompany an extradition request’.
(60) I am mindful that the provisions of the Act under review are concerned with matters quite different from extradition proceedings. However I, with respect, gain comfort from a consideration of the judicial pronouncements made in the cases referred to in cl (59) of these reasons. I therefore consider it correct to describe that the form 1 was accompanied by the faxed form 2.” (pages 368-369)
Bulley J went on to give the matters that he had taken into account in reaching his conclusion on the facts of the case. They included a reference in the covering letter forwarding form 1 that form 2 was being sent by facsimile from Townsville. There had been discussions between officers of DMR and DAA to the effect that form 2 would be lodged by a separate person and those discussions had occurred before form 1 was sent. Form 2 was sent to the officer of DAA who had been involved in those discussions. DMR intended that form 2 be placed with form 1 when it was received by DAA.
Since the case of Re Portman and Development Allowance Authority was decided, the Full Court of the Federal Court considered an appeal from the judgement of Spender J in Todhunter v Attorney-General (Cth) (1994) 124 ALR 442, to which reference was made. It did so in Todhunter v United States of America (1995) 57 FCR 70 (Black CJ, Gummow and Lindgren JJ) where the Full Court concluded that:
“…We would not interpret expressions such as ‘supported by’ and ‘accompany’ in Art XI as requiring physical connection. Rather, there is a temporal conjunction which must exist before the magistrate makes the determination under s 19 if documents are to be received and admitted as evidence in the proceedings before the magistrate pursuant to par (5) of Art XI. That view of the matter is consistent with unreported English authority discussed by Burchett J in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 119. See also Harris v Attorney-General (Cth) (1994) 52 FCR at 402-403. We should add that the English decisions and Winkler itself were decisions under provisions other than those with which we are concerned.
We note that in Winkler at 119, Burchett J said he had some difficulty with the proposition that the words ‘accompanied by’ in this context might be so construed as to be satisfied by a document received in time for presentation to the magistrate. His Honour referred to s 15 of the 1966 Act, which like s 16 of the present legislation, provided for the issue by the Attorney-General of a notice. His Honour said:
‘I do not think it would be consonant with the scheme of the Act to read the words “accompanied by” in a sense which would include documents received after the date of the Attorney-General's notice. Such documents could not have been taken into account by the Attorney-General when deciding to issue his notice.’
This passage was relied upon in argument by counsel for Mr Todhunter. However, counsel for the United States pointed to the procedure adopted in Harris v Attorney-General (Cth).. He went on to submit that an inadequacy in the documentation as it existed when the Attorney-General gave notice under s 16 might be one thing, whilst such a deficiency when the magistrate was making the determination under s 19 was another. A flaw in the decision-making process of the Attorney-General might be attacked at that stage by an application under s 39B of the Judiciary Act 1903 (Cth). In the present case, this had not happened. Failure to take that step did not signify that any defect remained available to vitiate the determination before the magistrate: cf Athanassiadis v Government of Greece [1971] AC 282 at 289, referred to in Winkler at 94-95, 118.
The task of the magistrate under s 19 commenced upon satisfaction, inter alia, of the condition precedent that the Attorney- General had given a notice under s 16(1): s 19(1)(b). The obligation of the magistrate was to conduct proceedings to determine whether the person in question was eligible for surrender. That required the satisfaction of the four conditions set out in s 19(2). As already outlined, pars (a) and (b) of s 19(2) were directed to the production to the magistrate of certain documents.
In our view, the submissions for the United States on this point should be accepted.” (pages 84-85)
The essence of these authorities is that a document may be “accompanied by” another even if the two are not sent together, attached to each other or even sent at the same time. They must, however, “come together” at some stage and it is not until they do that one can be said to be accompanied by the other. Whether one is accompanied by another depends upon the facts in each case including the intentions of those sending and receiving them, their mutual understanding, the time at which they were sent and the context in which they were sent. Such matters are taken into account in deciding whether or not one “goes with”, and so is “accompanied by”, the other.
Does the context of s. 501G in particular, and of the Act in general, lead to a different interpretation? I think not. The scheme of the legislation is such that the information available to an applicant is closely regulated and I have already referred to it above. It is essential that the applicant have the opportunity to have access to every part of the information available to him. In addition, it is particularly important that he receive it within the time limits provided by the Act for he or she is only able to respond to it within strict time limits. These considerations, however, do not mean that the words “accompanied by” should be given any interpretation other than that which they have been given in other contexts. The notice of the decision will have been accompanied by the G documents when those G documents are received by the applicant and it is clear from the other circumstances to which I have referred that they are in fact the G documents and were intended to accompany the notice of decision. Whether or not the notice is also accompanied by them if the G documents were deemed to have been received pursuant to the provisions of s. 29 of the Acts Interpretation Act 1901 or s. 160 of the Evidence Act 1995 is not a matter that arises in this case and so does not need to be considered.
In this case, the documents were clearly marked as G documents. Reference had been made to them in an oblique fashion in the document entitled “Information About Review Rights” that accompanied the notice of decision sent on 19 November, 2002. That oblique reference occurred when the document stated that “The giving of reasons for a decision will now be governed by, and furnished pursuant to, s501G of the Migration Act 1958 …” (T documents, page 97). In the circumstances, I am satisfied that the G documents accompanied the notice of decision when Mr Assi or his solicitors received it on or about 20 December, 2002. It was only at that time that the decision was notified to Mr Assi in accordance with s. 501G(1). It follows that the time limit specified in s. 500(6B) did not commence to run until that day as it is measured from the “… the day on which the person was notified of the decision in accordance with subsection 501G(1)”.
As Ruffell did not lodge its application until 17 March, 2003, it was well outside the nine day time limit. As s. 500(6B) provides that ss. 29(7), (8), (9) and (10) of the AAT Act do not apply to the application and as they are the only provisions that could otherwise have given the Tribunal power to extend the time within which an application might be made, I am unable to extend the time within which Ruffell could lodge its application. Therefore, I must refuse the applicant’s application for an extension of the time within which it might lodge an application for review of a decision of a delegate of the respondent dated 19 November, 2002.
What would have been my decision if Mr Assi had not been notified of the decision in accordance with s. 501G(1)?
Although I have decided that Ruffell is unsuccessful, I have considered what decision I would have made had I not reached that view. I have done so as I am aware that an appeal has been lodged against my earlier decision in Re Assi and Minister for Immigration and Multicultural and Indigenous Affairs and I would expect that another may be lodged against this decision. Should the appeal be upheld, my doing so will lead to an earlier resolution of the issue than might otherwise be the case. The parties both made submissions on the issue.
To say that Mr Assi has not been notified of the decision in accordance with s. 501G(1) is not to say that there is no time limit within which an application must be lodged to the Tribunal. Even though it was notified as required by the Act, there has nevertheless been a decision of which Mr Assi has been given notice. It is a decision that is reviewable by the Tribunal. In the absence of a time limit in the Act, the effect of s. 29 of the AAT Act is that an application for review must have been lodged within 28 days from the day on which Mr Assi received the notice setting out the terms of the decision.
As I noted earlier in these reasons, s. 500(6B) provides that s. 29(7) of the AAT Act does not apply to an application to the Tribunal for review of a decision under s. 501 relating to a person in the migration zone. That exclusion no longer applies as Mr Assi was not notified of the decision in accordance with s. 501G(1). Section 29(7) is the provision of the AAT Act that gives the Tribunal the power to extend the time within which an application may be lodged. It provides that a person may apply for an extension of the time allowed to lodge an application pursuant to s. 29(7) of the AAT Act and may do so even though the time for an application has expired (AAT Act, s. 29(8)).
In considering applications to extend time in various jurisdictions in the Tribunal, regard has been had to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305. Without intending to set out an exhaustive list, his Honour set out a number of principles to guide a court in reaching a decision on an application for an extension of time. The essential features of those principles are set out in the head note to the case which reads:
“(a) the fact that the applicant bears the onus of rebutting the prima facie rule that no ... proceedings commenced outside the prescribed period will be entertained by the court by showing an ‘acceptable explanation of the delay’ and that it would be ‘fair and equitable in the circumstances’ to extend the time;
(b)any action taken by the applicant, apart from the actual making of an application for review under the ADJR Act, which continues to make the decision-maker aware that the finality of his decision is being contested;
(c)any prejudice to the respondent which may have resulted from the delay;
(d)any unsettling of people, other than the respondent, or of established practices;
(e)the merits of the substantial ... application;
(f)considerations of fairness as between applicants and other persons in like positions: it is not only prejudice vis-a-vis the parties but against the wider public interest which must also be taken into consideration.”
These principles have been developed in later cases such as Comcare v A’Hearn (1993) 45 FCR 441 (Black CJ, Gray and Burchett JJ), Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 (Kiefel, J) and Dickinson v Comcare (1998) 52 ALD 86 (Finn J). In Comcare v A’Hearn, for example, the Full Court of the Federal Court said that, although it will normally be expected that the applicant will give an explanation for his or her delay in lodging an application, such an explanation is not an essential pre-condition to the Tribunal’s exercising its discretion (page 444). At the same time, it is clear that the fact that the lack of a satisfactory explanation for the delay (even if it appears credible) may, in some circumstances, strongly weigh against the grant of an extension of time (Security, Department of Social Security v Van Den Boogaart at page 621).
In Maynard v Secretary, Department of Social Security [1993] FCA 698 (unreported, 26 August, 1993) Northrop J pointed out:
“An unfettered discretion conferred by statute cannot be fettered by decisions of a court. In exercising the power conferred by s 11 of the Judicial Review Act, the Court must act judicially and on relevant facts. If it is wrong, an appeal court can put the trial judge right. The reference to other authorities may be interesting but essentially they are illustrations of other cases, in most cases the facts of which are completely different to the facts before the Court. They may be helpful in understanding what may be relevant. They are not binding in any sense at all and to that extent it is often unwise to refer to too many cases because it detracts from the real issue that the Court must decide on the facts before it.
What is necessary to keep in mind is that the statute does impose a limitation period but at the same time there is a power to extend that period. The extension can be made before or after the expiration of the time. Having regard to that clear intention of the Legislature, the Court must consider the facts and determine whether there has been proof of sufficient matters to justify the granting of the indulgence to the person seeking the extension of time. Involved in this, a number of matters must be considered, including any explanation as to why the matter was not brought within the prescribed time, the effect on the applicant if the time is not extended and the effect on other persons, including the respondent or third parties who could be affected if leave is granted and the application succeeds in due course. Often some of these features are referred to as what is fair and reasonable, sometimes referred to as prejudice, but essentially what is to be considered is the effect of either making or refusing to make an order for the extension of time.” (pages 3-4)
It is also clear from the authorities, however, that the time within which an application may be lodged will not be extended if there is no possible hope of the application’s succeeding if it were to be reviewed on the merits (Bouvet v Secretary, Department of Social Security [1992] FCA 216 (Unreported, Northrop J, 7 April, 1992). This aspect was also considered by von Doussa J in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 when he said:
“One of the principal considerations to be addressed in deciding whether it
is fair and equitable in all the circumstances to extend time is whether the
merits of the proposed appeal are such that if an extension of time is granted
there is some prospect of success in the appeal. If a consideration of the
merits indicates that there is no question to be agitated on the appeal, and
there is no prospect of success, it would be futile to grant an extension of
time and most unjust to the respondent to subject the respondent to the costsof defending a pointless appeal. …” (page 122)
On the basis of the evidence of Mr Gerkens in his affidavit, I am satisfied that he and Mr Assi were taken aback after I decided that Mr Assi was not entitled to make an application. I do not have any evidence from any representative of Ruffell as to why it did not make an application. Despite that, I am satisfied on the basis of the initial application by Mr Assi that he and Ruffell did not give any thought to Ruffell’s making an application. Mr Assi thought that he was entitled to do so. Ruffell was not given notice of the decision by the delegate and, if it thought about the matter at all without any such notice, no doubt thought that Mr Assi’s application was sufficient. Once it realised that Mr Assi could not lodge an application, it sought to do reasonably quickly. At no time could the Minister or his Department reasonably believe that the decision was not being contested. Mr Assi lodged an appeal in relation to my decision in Re Assi and the Minister for Immigration and Indigenous and Multicultural Affairs within the time allowed and then Ruffell lodged an application in the Tribunal. There is no evidence of any prejudice that could be caused to the Minister.
Granting an extension to Ruffell would not upset notions of fairness between Ruffell and other applicants in a like situation. There may be other applicants in Ruffell’s position but it is an unusual position when considered against the background of events leading to its application. There is a wider public interest in finalising applications and in not permitting serial applications in relation to the same decision. This is not a case in which there can be said to be serial applications. There has been one by Mr Assi but, in my view, only Ruffell is entitled to make an application. The Act makes no provision for it to be notified of the decision even though it has sponsored Mr Assi’s application and is the only person entitled to make an application. There is also a public interest in giving a person who has a right to lodge an application a reasonable opportunity to lodge an application. Ruffell did not have that opportunity until the hearing of Mr Assi’s application when it had a representative at the hearing. It acted with reasonable speed after that time.
The merits of the case are more difficult. It is not appropriate to consider those merits in detail when considering an application for an extension of time. This is a case in which the decision will require a consideration of whether or not Mr Assi passes the character test and, if not, whether a discretion should be exercised in his favour. Having regard to the information he had presented in the earlier application and to that presented on behalf of the Minister, it is likely that the decision would rest on the exercise of the discretion for Mr Assi has been convicted, albeit in absentia, to a term of imprisonment of 12 months. For all that, if he were to make out the factors he has set out in his documentary evidence, he would have some prospects of success.
Taking all of these matters into account, I formed the view that Ruffell should be permitted to lodge an application after the expiration of the time permitted by s. 29 of the AAT Act. The delay is quite short when regard is had to the fact that the Minister was not obliged to, and did not, notify Ruffell of the decision. Since it became apparent that it was Ruffell which had the right to lodge an application, it has moved fairly quickly and, in any event, neither the Minister nor others in a like position have been prejudiced by the time that has passed since the decision was made. The application is not without merit, as I have said. It follows that, had I not regarded myself as without power to extend the time within which Ruffell could lodge an application, I would have extended that time.
Decision
For the reasons I have given, I refuse the applicant’s application for an extension of the time within which it might lodge an application for review of a decision of a delegate of the respondent dated 19 November, 2002.
I certify that the forty-three preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: ................................................................
P. Paczkowski Associate
Date/s of Hearing 21 March, 2003
Date of Decision 17 April, 2003Solicitor for the Applicant Mr M. Gerkens,
Fernandez Canda Gerkens
Solicitor for the Respondent Ms J. Greaves,
Blake Dawson Waldron
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