Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 575

Re: GUNDRATNAM (JOHNNY) SUNDRAMPILLAI
And: THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G62 of 1992
FED NO. 575
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Administrative Law - immigration - application for order of review of two decisions - extension of time sought for making application - principles to be applied in exercising discretion to extend time - delay between receipt of notice of each decision and application - intervening course of action not involving challenge to earlier decision - public interest considerations - no basis for grant of extension in relation to earlier decision - delay less and attributable to factors beyond control of applicant in relation to later decision - later decision under challenge during period of delay - extension of time granted in relation to late decision.

Administrative Decisions (Judicial Review) Act 1977 s.11, s.13

Migration Regulations

Ralkon v. Aboriginal Development Commission (1982) 45 ALR 535

Lucic v. Nolan (1982) 45 ALR 411

Hickey v. Australian Telecommunications Commission (1983) 47 ALR 517

Hunter Valley Development Pty Ltd v. Minister for Home Affairs and Environment (1984) 58 ALR 305

HEARING

PERTH

#DATE 4:8:1992

Counsel for the Applicant: Mr R. Lindsay

Solicitors for the Applicant: Director of Legal Aid

Counsel for the Respondent: Mr P. McLiver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The Court orders that:

1. The time limited for the applicant to file an application for an order of review of the decision made on 4 July 1991 refusing his application for the grant of a December 1989 (Temporary) Entry Permit be extended to 4 June 1992.

2. The application for extension of time be otherwise dismissed.

3. The substantive application be dismissed so far as it relates to the refusal to grant an entry permit to the applicant pursuant to s.6A of the Migration Act 1958.

4. The costs of the application for an extension of time be reserved.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Introduction

The applicant, Gundratnam Sundrampillai, also known as Johnny Sundrampillai, is a citizen of Singapore who has been unlawfully in this country since 1 December 1981 when he deserted his ship which was docked in Melbourne. He surrendered to the Department of Immigration, Local Government and Ethnic Affairs on 11 September 1989. There then began a lengthy process of application and review associated with his attempt to remain in Australia as a permanent resident. On 19 October 1989 he lodged an application for grant of resident status on the ground that he was married to an Australian resident and on compassionate grounds. This application was refused on 7 August 1990. Following an application for reconsideration directed to the Immigration Review Tribunal, that body recommended, on 12 December 1990, that the application be rejected. The Tribunal's recommendation was accepted on 18 December 1990 and Mr Sundrampillai was advised of that acceptance on 8 January 1991. A further application was made on 14 February 1991 for a temporary entry permit under provisions relating specifically to illegal entrants - a December 1989 (Temporary) Entry Permit. That application was refused on 4 July 1991. Mr Sundrampillai lodged an appeal to the Immigration Review Tribunal but was advised on 12 February 1992 that the Tribunal had no jurisdiction to consider the matter.

1. On 4 June 1992 Mr Sundrampillai filed an application in this Court seeking review of the decisions of 18 December 1990 accepting the recommendation of the Immigration Review Tribunal and the decision of 4 July 1991 refusing his application for a December 1989 (Temporary) Entry Permit. The applicant is out of time in relation to both decisions and on 6 July 1992 an application was filed seeking an extension of time within which to apply for the order of review which he seeks in relation to each of them.
   Factual Background

2. Gundratnam Sundrampillai was born in Singapore on 25 March 1957 and is a citizen of that country. On 1 December 1981 he was employed as a merchant seaman on a Singaporean ship called the Anro-Temseck which docked at Melbourne. Acting upon what he says was an impulse and under the persuasion of a friend, Sundrampillai decided to stay in Australia. He left the ship taking his belongings with him and went into hiding until it had departed. He has remained in Australia illegally since that time. He has had regular employment in a variety of jobs and says he has never claimed or been paid any form of social security benefit. For the first two years after he left his ship he worked in Melbourne as a Trades Assistant Galvaniser for two employers. In 1983 and 1984 he worked as a Tradesman's Assistant for an engineering company in Adelaide. Thereafter, until 1989, he worked in a number of jobs as a waiter and porter in hotels in Perth and Sydney. He was not apprehended during this time, but on 23 April 1985 a deportation order was made against him.

3. In 1984, Mr Sundrampillai met Lorraine Sly, an Australian citizen. On 25 March 1988 they were married at the house of Ms Sly's mother in Perth. Mr Sundrampillai says that at that time his employment in Perth came to an end when the hotel for which he was working had financial difficulties. For that reason, he and his wife decided to travel to Adelaide where he obtained temporary employment at a casino. He was unable to continue that employment when he could not provide evidence of his entry to Australia or satisfy the casino's employee security checks. In July 1988 he and his wife returned to Perth. They had borrowed $3,000 to finance their wedding and travels and in order to pay off the debt he took two full-time jobs and was working up to 16 hours a day. His wife controlled the family finances.

4. After their return to Perth, his wife became pregnant and according to Mr Sundrampillai their marital relationship began to deteriorate. Their daughter, Nadia, was born on 6 April 1989 but only four days after returning home from the hospital his wife left him and took the baby with her to her mother's home in Perth. Over the next several months she visited him occasionally during the week and would bring their daughter on some weekends to visit. Mr Sundrampillai attempted to persuade her to return to live with him. When the child was about 5 months old, his wife and daughter moved back for a week but after an argument over some lost money, his wife again took the daughter back to live with her mother. On 11 September 1989, Mr Sundrampillai voluntarily presented himself to the Department of Immigration, Local Government and Ethnic Affairs as an illegal entrant. He was arrested and initially held in custody at a detention centre.

5. On 19 October 1989, Mr Sundrampillai lodged an application for the grant of resident status on grounds of marriage to an Australian resident. It included a statutory declaration signed by Ms Sly in which she said she supported the application and intended to maintain a lasting marriage relationship with her husband. The background to this apparent change of heart was set out in an interview with a departmental officer on 17 October 1987 when she said that, although separated from her husband, she wanted to reconcile with him. She believed that if he were deported, she would not see him again as he would go to jail in Singapore for 10 years for having deserted his ship and for failing to complete Army Reserve training in that country. Her daughter, Nadia, would be adversely affected by her husband's deportation.

6. It appears that at about that time Mr Sundrampillai had consulted B.F. Stokes and Associates, Solicitors, who assisted him in the submission of additional material in support of the application on 23 October 1989. Included in this material was a letter dated 23 October 1989 from Ms Sly to the Minister in which she said:
   

"I have been separated from my husband Johnny Sundrampillai. I hoped in the near future, with our differences resolved, to reconciliate. (sic) I am prepared to reconcile with my husband when he can provide a home and support us. If my husband is deported our marriage has no hope."

On 15 December 1989, Ms Sly wrote to the Department advising that she intended to file for divorce and withdrawing all support for Mr Sundrampillai. She said that she had only spent 9 hours with him since he was released from the Detention Centre on 25 October 1989 and had a number of complaints about his behaviour.

1. On 14 May 1990, Mr Sundrampillai was interviewed by a departmental officer and in the course of that interview said he had never resumed a proper "husband and wife" relationship with his wife after his release from custody although he had spent some 200 to 300 hours in discussion and telephone conversations with her. He had doubts as to whether he could reconcile with her. He had made spasmodic maintenance payments totalling $600 to $700 to her, but rarely saw his daughter. On 30 May 1990, Ms Sly told the Department she did not have an ongoing marriage with Mr Sundrampillai, she denied that he had spent 200 to 300 hours with her since his release from custody and said there was no chance of a reconciliation with him as she could not trust him. He had not made any positive suggestions at all along the lines of setting up a family home. Their daughter did not know him as her father and there was no emotional bond between them. Since Nadia's birth, she and her husband had only lived as husband and wife for four days. In relation to maintenance payments she said he had made one payment of $40 cash in December 1989 and a $40 Australia Post payment on 11 May 1990. He had left various cash amounts totalling $300 in her letterbox. She had no immediate plans to file for divorce. She reiterated that she did not support his application for permanent residence in any way.

2. The decision-making process seems to have been considerably and inexplicably protracted. The application was considered in relation to both the ground of marriage to an Australian resident and in relation to claimed compassionate and humanitarian grounds. On 7 August 1990 the officer in charge of the Resident Status Section of the Department of Immigration decided to refuse the application for the grant of resident status.

3. On 24 August 1990 Mr Sundrampillai, with the assistance of his solicitors applied to the Immigration Review Tribunal for reconsideration of the decision to refuse his application. His solicitor had asked to be given reasons for the primary decision under s.13 of the Administrative Decisions (Judicial Review) Act 1977 and these were provided on 3 September 1990. They were forwarded to the Tribunal with other material under cover of a letter dated 5 September 1990. Those materials included a 17 page statement signed by Mr Sundrampillai. On 12 December 1990, the Immigration Review Tribunal recommended that the application for reconsideration be rejected. That recommendation was accepted by a delegate of the Minister on 18 December 1990. Mr Sundrampillai was informed of that decision by letter dated 8 January 1991. He discussed the decision with his solicitor, Mr Stokes, who advised him to make an application for a December 1989 (Temporary) Entry Permit under an amnesty scheme then in force for illegal entrants. Mr Stokes provided Mr Sundrampillai with the relevant form. He returned the form to Mr Stokes in January 1991 and ultimately it was lodged on 14 February 1991. During that time and, according to Mr Sundrampillai, because of delay on the part of his solicitor, he was arrested and taken into custody again for a period. He says that he was never given any advice by Stokes that he could seek a review in the Federal Court of the decision of the Minister's delegate accepting the recommendation of the Immigration Review Tribunal. He did not consult Stokes again.

4. Mr Sundrampillai's application for a December 1989 (Temporary) Entry Permit was considered under the provisions of reg.131A of the Migration Regulations. The criterion specified in reg.131A(1)(d)(iv)(C) that the applicant be a special need relative of a settled Australian citizen was held not to be satisfied in relation to his daughter Nadia. She did not, according to the decision-maker, have a permanent or long term need for assistance from Mr Sundrampillai. She was being cared for by her mother and lived with her mother and grandmother who provided for her well-being. He had had very little contact with her and had not seen her for over 12 months. It was accepted that he had paid some maintenance in relation to her but that no maintenance orders were in force regarding the child and that her mother was in receipt of welfare payments for her support. The alternative criterion under reg.131A(1)(d)(v) of "any other compassionate ground for the grant of entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or a Australian permanent resident" was also considered. The decision-maker said:
   

"While it can be accepted that the lack of contact between father and child may be due to fact that the applicant is not encouraged by his estranged wife to contact the child the fact remains that due to her young age and lack of a bond with her father she does not have a relationship with him that would suffer if he were no longer in Australia.

There is no reason that the applicant cannot continue maintenance payments from overseas if he so desires. There is no reason that the applicant cannot visit his child from overseas if he wishes, there is also no reason why his child should not visit him in his country of residence (with the agreement of her mother) when she is of an age to make such decisions. In light of the current situation between the applicant and his estranged wife it can be seen that the relationship between the applicant and his child is unlikely to develop further whether he is in Australia or not."

The decision-maker, Mr D. Burnett, decided on 4 July 1991 to refuse the applicant as not meeting the legal requirements of migration regulation 131A.

1. Mr Sundrampillai was advised by letter on 4 July 1991 that his application had been refused. The letter enclosed a copy of the record of decision setting out findings of fact and reasons for decision to refuse the application. It went on:
   

"If, when you read this letter and any accompanying papers, you think you have grounds to make another entry permit application or to apply for review, you should do so within the regulation time period. If you do not depart Australia immediately you are liable to be deported. Your twenty-eight (28) day period of grace will be suspended should you lodge an application for another class of entry permit or allowable review."

With the letter he received pamphlets advising him of his appeal rights. According to Mr Sundrampillai, he read the pamphlets but found them difficult to understand. Shortly after receiving this advice and the pamphlets, he wrote a letter to his daughter whom he called "Princess". It was in the following terms:

"Dear Princess,

What did I tell you? LOVE] Read this letter and you'll know all about it.

Your mother and grand-mother were smart but they forgot all about Love and forgiveness] But now it's up to me, to get them] What do you think I should do? Love and forgive them? or to hate and destroy their lives? You've got the Bible. In the beginning I didn't know nothing] But now I know]]

1). The Immigration Dept. knew that they cannot take me court. Why?

They were doing their best at the detation (sic) Centre, but luck was not on their side. I got out, because of the lawyer, and Ratchel Lim and my family with the help of your mother for $360/= Everytime you want to fight the Dept. You have to pay a fee of 300 or 360. If it's accepted you will get the money back, if not you wont. Me and the lawyer have put in almost 5 application

(sic); But we couldn't get them to take me to court for an appeal against their decision in the Federal Court. So the lawyer made it all up to stir them. Because he told me that those guys are not going to win] Because there is Such a thing as "Child's Rights'", Legal. An Australian born child can never be taken of the country (sic). So they keep rejecting me so that they could make money] I'll tell you why? . FEDERAL COURT:- Administrative Decision (Judicial Review) Act which provides for:

* persons to apply to the Federal Court for Judicial Review (on the legality, not the merits). If I had any government assistance while my statues (sic) was illegal. They would have done so long time ago] They are not interstated (sic) - in your mother's letters and stories] They don't like me too] So they have to give work permit so that I could support myself. If not they will have to give me a residence for the dole and find me a home.

God was good to me]]]]]

Because everytime when we put an application in they will contact your mother and ask her stupidly to write a letter in. So that they could make money. Because she never listen to me only her mother and the Immigration Dept. Right?

I had to sack the lawyer because he was good (sic). Why? After they get a letter from your mother they will call me in for an interview. Just like the first one when MR. PHIL. LOVERING said to the lawyer, "If I throw this you are going to throw that, the "file]" Both of them had "this"]"

With the letter to his daughter was a printed document entitled "REVIEW AND APPEAL ARRANGEMENTS FOR DECISIONS MADE IN THE IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS PORTFOLIO". This document referred to avenues of appeal for people wishing to appeal against decisions or to complain about how their application was considered or how the decision on their application was made. It referred to the Administrative Decisions (Judicial Review) Act as providing for "persons to apply to the Federal Court for Judicial Review (on the legality, not the merits) of a broad range of Commonwealth administrative decisions pursuant to enactments, including migration decisions...".

1. Mr Sundrampillai was cross-examined in relation to the printed advice which he had received. He acknowledged having received it. As to his reference in the letter to the possibility of review in the Federal Court, he said that he had only copied down what was in the pamphlet. He copied it down and was very highly stressed when he was doing this because his application had been rejected. He had read it, but he didn't understand what he was reading. He agreed that he had drawn a circle on the pamphlet round the section in relation to applications under the Administrative Decisions (Judicial Review) Act.

2. Mr Sundrampillai discussed the refusal of his application with a solicitor at the Legal Aid Commission and was advised to lodge an appeal with the Immigration Review Tribunal. He did this on 26 July 1991. For reasons which do not appear from the materials before the Court, he did not receive a response to that application until 12 February 1992 when the Deputy Registrar of the Tribunal wrote to him in the following terms:
   

"I write in reference to your application for a review of a migration decision in regard to yourself. Migration (Review) Regulation 9(2) states that decisions to refuse December 1989 (Temporary) and/or December 1989 (Permanent) Entry Permits may only be reviewed by the Tribunal where the applicant for such Permit has not been arrested under ss.92 or 93 of the Migration Act 1958.

A further inspection of the Department of Immigration, Local Government and Ethnic Affairs (DILGEA) file has shown that you were arrested on 6 February 1991. I have therefore decided that you are not eligible to apply for a review by this Tribunal and that no further action is to be taken in this matter. I enclose a copy of the above regulation for your information. As you are not eligible for review, a refund of the $300 fee paid will be processed and forwarded to you in the near future."

The letter went on to say that a copy was to be sent to the Legal Aid Commission. Mr Sundrampillai discussed the response from the Tribunal with Mr Christie of the Legal Aid Commission and was told that the advice appeared to be correct and that it was therefore not possible to have the decision of July 1991 reviewed on its merits. He was however advised then that it might be possible to apply to the Federal Court to review that decision and the earlier decisions made by the respondent in December 1990. An extension of legal aid would be required to enable such application to be made. On or about 13 May 1992, Mr Sundrampillai was notified by Mr Christie that an extension of aid to enable an application for review to be made to the Federal Court had been granted and he then gave instructions in respect of such application.

1. Mr Sundrampillai says that he believes that the respondent has at all times since at least September 1990 been aware that he wished to remain in Australia and that he was pursuing applications through the various review procedures which he was informed and believed were available to him in order to obtain a decision that would enable him to remain permanently in Australia. He also asserts his belief that the respondent has not suffered any prejudice by reason of the delay in making the application. If the application is refused, there is no other avenue open to him to have the respondent reconsider the decision in accordance with law and the probability is that he would be deported and the relationship between himself and his daughter terminated for all practical purposes.

2. I am satisfied that he was aware, after 4 July 1991 of the existence of a review or appeal process in the Federal Court. He received advice which he acted upon to pursue his cause in the Immigration Review Tribunal, advice which turned out to be incorrect. I am satisfied on the evidence that he acted under the influence of that advice in not pursuing the review process in the Federal Court. As he had been supplied with a statement of the reasons for the decision on 4 July 1991 the time limited by the Administrative Decisions (Judicial Review) Act 1977 for filing his application for review expired on 1 August 1991.
   Statutory Framework

3. The time limited for filing an application for review under the Administrative Decisions (Judicial Review) Act 1977 is governed by the provisions of s.11 of that Act which provide in the relevant parts as follows:
   

"11(1) An application to the Court for an order of review:

(a) shall be made in such manner as is prescribed by Rules of Court;

(b) shall set out the grounds of the application; and

(c) shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.

.

.

.

(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty eighth day after-

(a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or

(b) in a case to which paragraph (a) does not apply -

(i) if a statement in writing setting out those findings referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under sub-section 13(1) not later than the twenty eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant - the day on which the statement is so furnished;

(ii) if the applicant, in accordance with sub-section 13(1) requests the person who made the decision to furnish a statement as mentioned in that sub-section - the day on which the statement is furnished, the applicant is notified in accordance with sub-section 13(3) of the opinion that the applicant was not entitled to make the request, the Court makes an order under sub-section 13(4)A declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with sub-section 13A(3) or 14(3) that the statement will not be furnished; or

(iii) in any other case - the day on which a document setting out the terms of the decision is furnished to the applicant."

Whether An Extension of Time Should be Granted

1. The Court's discretion to extend time under s.11 of the Administrative Decisions (Judicial Review) Act is not fettered by any express limitation - Ralkon v. Aboriginal Development Commission (1982) 45 ALR 535 at 550 (Keely J.). While it may be strictly correct to say, as his Honour did in Ralkon, that no onus of proof is placed upon the applicant for an extension of time, the prima facie rule is that proceedings not commenced in time should not be entertained - Lucic v. Nolan (1982) 45 ALR 411 at 416 (Fitzgerald J.). Fitzgerald J. did not see the concerns of the Court in the exercise of its power under s.11 as limited to the effect upon the applicant of a refusal to extend time. The administration of justice attracts broader considerations than the interests of the parties. It is for the applicant to discharge the burden of showing why, in all the circumstances of the case, an extension should be granted. An explanation of the delay and the absence of prejudice to the respondent will not automatically justify an extension. At 417 his Honour said:
   

"It is neither necessary nor desirable, if indeed it would be possible to enumerate the great variety of possibly material circumstances to be considered on an application for an extension of time. Nor, in my opinion, is it possible to identify particular circumstances or classes of circumstances which must automatically be excluded from consideration. Each individual case should be dealt with individually, giving due weight to prior decisions and what they reveal of judicial attitudes: cf s11 (4) and (5). Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicant's case or matters which might justify the refusal of relief, if the Court has a discretion to do so where a ground for relief is made out."

In Hickey v. Australian Telecommunications Commission (1983) 47 ALR 517, Lockhart J. agreed generally with the approach taken by Fitzgerald J. His Honour also said at 523:

"Although s.11 does not in terms place an onus on an applicant seeking an allowance for further time within which to lodge an application for an order of review, it is nevertheless incumbent upon him to satisfy the court that the extension of time should be granted. It is not for the decision-maker to establish that the applicant does not have a case for an extension of time. The applicant seeks an indulgence. It is for him to prove that he is entitled to it. But the court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind. The statute does not require them. Nor should the courts. It is best left to the good sense of the Judge hearing each case to determine whether, on the evidence before him, the court's discretion should be exercised in favour of granting an enlargement of time to bring an application for an order of review."

In Hunter Valley Development Pty Ltd v. Minister for Home Affairs and Environment (1984) 58 ALR 305, Wilcox J. at 310-311 set out a non-exhaustive but helpful list of principles extracted from various cases to guide the exercise of the Court's discretion. In summary they are:

1. The section does not place any onus of proof upon an applicant for extension and special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper to do so. It is the prima facie rule that proceedings commenced outside the period limited will not be entertained. The applicant must show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.

2. 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 and a case where the decision-maker was allowed to believe that the matter was finally concluded.

3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay, is a material factor mitigating against the grant of an extension.

4. The mere absence of prejudice is not enough to justify the grant of an extension. Public considerations often intrude. A delay which may result if the application is successful in the unsettling of other people or of established practices is likely to prove fatal.

5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

6. Considerations of fairness as between the applicants and other persons in a like position are relevant to the manner of exercise of the Court's discretion.

His Honour also drew a distinction between cases which affect only the immediate parties and cases involving public administration where the public interest might well dictate refusal of an extension even after only a short delay.

1. Mr Sundrampillai was notified of the decision of 18 December 1990 on 8 January 1991. No reasons were requested in relation to that decision. Acting on advice, he decided upon a course of action which did not involve any challenge to the decision to accept the recommendation of the Immigration Review Tribunal. What he did was to file an application for a December 1989 (Temporary) Entry Permit. It may well be the case that he was not advised of the possibility of judicial review by his solicitor. That is a factor which can be taken into account. But having regard to the delay of some 18 months which ensued between the time he had notice of the decision and the time an application was filed, that factor assumes less significance than it might have in the context of a shorter delay. There is some basis for the suggestion that the decision of the Immigration Review Tribunal may have been flawed and to that extent he will be prejudiced by the refusal to extend time. But there is prejudice also to the decision-maker who, in the circumstances, was entitled to regard his decision as concluded, Mr Sundrampillai having gone off on a different tack by seeking a different type of permit. There was no suggestion after January 1991 that the decision notified on that date was to be the subject of further challenge. Nor could the decision-maker after this period of time be expected to accurately recall the way in which he dealt with the Tribunal's recommendations and in particular what parts of its reasoning he accepted and what, if any, he may have rejected. Also to be weighed in this case is the public interest in the expeditious progress of decision-making and review processes. It is antithetical to that interest if a decision made 18 months ago and until recently not the subject of apparent dispute, is able to be called up for judicial review in anything less than exceptional circumstances. In my opinion, no case has been made out for an extension of time in relation to the decision of 18 December 1990.

2. The position is, I think, different in relation to the decision of 4 July 1991. The delay is less and attributable in large part to a combination of incorrect advice and the delay of over six months that elapsed between lodgment of the application for review with the Immigration Review Tribunal and its response to the effect that it did not have jurisdiction. The decision has, to the knowledge of the respondent, been under challenge during that time. Some further delays are attributable to the internal decision-making processes of the Legal Aid Commission. While that is not always a factor to be given great weight in favour of an applicant, it is an explanation for delay by reference to events which were beyond the applicant's control. The importance of the decision to the applicant who has been in Australia for over ten years now, is not to be underestimated particularly in its impact upon the long term relationship with his daughter. There is no suggestion that the respondent has been prejudiced. Nor do I consider that the public interest requires that the application for extension be refused. In the circumstances I propose to allow the application for an extension of time so far as it relates to the decision of 4 July 1991.