SZNZU v Minister for Immigration & Anor

[2010] FMCA 197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZU v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 197

MIGRATION – Application for an extension of time to apply for review of a decision of the Refugee Review Tribunal made in November 1998 – whether necessary in the interests of the administration of justice to make such an order – extension of time refused – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.48B, 417, 426, 476, 477

Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Alzoubi v Minister for Immigration & Anor [2009] FMCA 689
Applicant S1174 of 2002 v Refugee Review Tribunal and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 325; [2004] FCA 289
Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Metera v Administrative Appeals Tribunal and Another (2008) 105 ALD 18; [2008] FCA 1627
Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501; [2008] FCAFC 17
Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966; [2002] HCA 30
Ratnam v Cumarasamy [1964] 3 All ER 993; [1965] 1 WLR 8
Re Commonwealth of Australia and Another; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67
Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492; [2004] FCAFC 283
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24
Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584; [1999] FCA 7
SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449
SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189; [2007] HCA 35
SZIVK v Minister for Immigration and Citizenship [2008] FCA 334
SZIZO and Others v Minister for Immigration and Citizenship and Another (2008) 172 FCR 152; [2008] FCAFC 122
SZJTK v Minister for Immigration & Anor [2009] FMCA 543
SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZMWT v Minister for Immigration and Citizenship and Another (2009) 109 ALD 473; [2009] FCA 559
SZNYJ v Minister for Immigration & Anor [2009] FMCA 1029
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
VQANv Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541
Vu v Minister for Immigration and Citizenship and Another (2008) 101 ALD 211; [2008] FCAFC 59
WZANW v Minister for Immigration & Anor [2009] FMCA 1075
Yu v Minister for Immigration & Anor [2009] FMCA 1161

Applicant: SZNZU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG 2654 of 2009

Judgment of: Barnes FM

Hearing dates: 14 December 2009, 29 January 2010, 4 February 2010, 15 March 2010

Date of Last Submission: 16 March 2010

Delivered at: Sydney

Delivered on: 26 March 2010

REPRESENTATION

Counsel for the Applicant: Mr P Knowles

Solicitors for the Applicant: Gilbert and Tobin

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.

2. The application of 2 November 2009 is dismissed as incompetent under s.477(1) of the Migration Act 1958 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2654 of 2009

SZNZU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 2 November 2009 the applicant filed an application in this court seeking review of a decision of the Refugee Review Tribunal dated 15 November 1998 affirming a decision of a delegate of the first respondent not to grant him a protection visa. Under s.477(1) of the Migration Act 1958 (Cth) (the Act) such an application “must be made to the court within 35 days of the date of the migration decision”. However under s.477(2) the court may by order extend that 35 day period as the court considers appropriate if:

   (a)     an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)     the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

2. The applicant did not apply to the court for review within 35 days of the Tribunal decision. His application is therefore incompetent unless the court makes an order extending time pursuant to s.477(2) of the Act. As required under s.477(2)(a) he made an application for an extension of time in writing in the application of 2 November 2009. Orders made by consent at a directions hearing conducted by a registrar of this court on 19 November 2009 provided for a separate hearing of the application for an extension of time that would precede any hearing of the merits of the substantive application.

3. In support of his application for an extension of time, the applicant relied on an amended application filed on 15 January 2010, his affidavits of 2 November 2009 and 15 January 2010 and an affidavit of Benjamin Edward Fogarty affirmed on 2 March 2010. 

4. The first respondent opposed the application for an extension of time and filed an application in a case on 2 December 2009 seeking orders that the application for an extension of time be refused.  The first respondent relied on affidavits sworn by Brendan Robert O’Brien on 2 December 2009, 3 December 2009, 22 January 2010, 28 January 2010, 3 February 2010 and 10 March 2010.  Much of the material in these affidavits is material that would otherwise have been expected to be included in a court book had the application for an extension of time not been dealt with as a preliminary issue. 

5. The applicant, a citizen of the People’s Republic of China, arrived in Australia on 9 June 1996.  On or about 17 June 1996 an application for a protection visa was lodged on his behalf with the assistance of a migration agent (who for present purposes I will refer to as “Mr Q”).  The fact that the applicant had the assistance of this migration agent was disclosed in the protection visa application form as was the business address of the migration agent in Sydney.  The applicant’s evidence is that when he was being assisted by Mr Q, he did not have a permanent address in Australia and provided Mr Q with his telephone number.  The protection visa application asked for correspondence to be sent to a post office box in Haymarket that was the migration agent’s postal address.  The protection visa application contained details of the applicant and his family and provided a residential address in Bankstown.  Copies of the applicant’s boarding pass and Chinese identity card were provided to the Department together with a subsequent explanation for the absence of a copy of a passport.  The applicant did not dispute that he had signed the protection visa application form (which bears a signature in Chinese characters as does a statement of claims provided to the Department). 

6. On 2 June 1997 the Department refused the application for a protection visa.  The refusal letter is marked as having been sent to both the Bankstown and Haymarket addresses.  The letter sent to the Bankstown address was returned to sender. 

7. The applicant claimed that he was not aware that his application had been refused as his migration agent had submitted a false address and he did not receive any letters from the Department.  He also claimed that the claims made on his behalf in the statement provided in support of the protection visa application did not relate to his actual circumstances in China. 

8. However on 2 July 1997 an application for review of the delegate’s decision was received by the Refugee Review Tribunal.  It disclosed the assistance of the adviser Mr Q, and gave a Pitt Street, Sydney address as the applicant’s home address.  It bears a signature in the name of the applicant in English (in Roman characters).  

9. In cross‑examination the applicant confirmed that at times he wrote his name in English, but stated that he did not have a “unique signature”.  He did not recall whether the signature on the review application was his or not.  He also claimed that every time he was asked to sign something by Mr Q, it was “always on a blank sheet”.  He did not deny that the signature on the review application could be his signature, but claimed that he was not aware of this application as his agent did not advise him of it.  He claimed that he had never received any written communications from the Tribunal, including any hearing invitation letter. 

10. Included in the material before the court is a copy of a Tribunal hearing invitation letter dated 28 September 1998 addressed to the applicant at the Pitt Street address provided in his review application and marked that a copy was sent to Mr Q at the Haymarket post office box.  The copy sent to the Pitt Street address by registered mail on 29 September 1998 and was returned to sender on 19 November 1998.

11. On 16 November 1998, the Tribunal wrote to the applicant at the Pitt Street address provided in the review application (a copy was also sent to Mr Q at the Haymarket post office box), informing him that it had decided he was not a refugee and enclosing a copy of the Tribunal’s decision record dated 15 November 1998.  The letter sent to the Pitt Street address was returned to sender.  

12. The applicant claimed that he was never advised of the outcome of his application for a protection visa, either by mail or by his agent.  His evidence is that he visited Mr Q’s office four times between June 1996 and January 1997, telephoned his office in about April 1997 and during the years that followed (apparently up to late 1999) he continued to contact Mr Q’s office by telephone “about every three months”.  He claimed that on each occasion the receptionist advised him that there had been no further progress and that he would be contacted when there was information. 

13. On or about 14 December 1998 a letter was sent to the then Minister for Immigration in the name of the applicant.  It purported to come from the applicant care of an Ashfield post office box address.  It bore a signature in Roman characters in the name of the applicant, attached a copy of the Tribunal decision and referred to the Tribunal file number.  The letter reiterated the claims in the protection visa application and claimed that the applicant was treated unfairly.  It set out the fact that the applicant had applied for a protection visa, that the application was refused and that the applicant had sought review by the Tribunal.  The letter referred to the Tribunal decision not to grant the applicant a protection visa on 16 November 1998.  According to this letter, the applicant did not attend the Tribunal hearing because he was “serious sick”.  The Minister was asked to use his power to give the applicant one more opportunity to have a hearing.  It appears that this letter was both posted and faxed to the Minister.  One of the copies of the letters bears facsimile marks including the name of Mr Q. 

14. The applicant claimed that he did not recall being contacted by Mr Q in late 1998.  He was not sure whether the signature on this document was his signature or not.  He claimed to know nothing about “this” and that he could not comment “because prior to June 2008 I know nothing about my – I know nothing about the circumstances.”  The applicant again claimed that he had signed his signature on some blank sheets or forms and stated that he did not remember whether the writing that appeared as the signature on this letter was his writing. 

15. The letter in question is a two and a half page letter signed in English in the middle of the third page above the applicant’s typed name beside a handwritten cross. 

16. On 22 September 1999, the Ministerial Interventions Unit wrote to the applicant at the Ashfield post office box address advising that the Minister had decided not to consider exercising his discretion under s.417 of the Migration Act to substitute for a decision of the Refugee Review Tribunal a decision that was more favourable to the applicant.

17. The applicant’s claim is that he was never informed by Mr Q of the progress of his application for a protection visa and that when he made regular three‑monthly enquiries he was simply informed that he had to be patient and that he would be contacted by telephone when they had any more information for him.  He claimed that when he contacted Mr Q’s office in about December 1999 he was told that Mr Q no longer worked there.  The person who answered the telephone could not provide any information about his application.  He claimed that he confirmed this by visiting Mr Q’s office “in early 2000” and was told by a person there that he did not have Mr Q’s address.  The applicant claimed that at this time he believed his application for a protection visa was still in progress.  He claimed that not only did he not receive correspondence from the Department or the Tribunal but also that he never received any information or documents from Mr Q.

18. The applicant’s evidence is that he then “immediately” tried to find another migration agent to assist him with his application for a protection visa.  He claimed he saw an advertisement in a Chinese newspaper for a migration agent named (for present purposes) “Ms L” which said words to the effect that Ms L was “organising a group case for people from China who need help to seek a protection visa”.

19. The applicant claimed that he went to Ms L’s office and told her that he did not know what had happened to his last migration agent or what stage his case was up to, but that he needed to apply for a protection visa.  He claimed that Ms L told him that because it was a class action she did not need to know the details of his persecution in China and that his individual circumstances were not important, but that if he paid her $700 she would make a request to find out the status of his protection visa application and join him to the class action. 

20. The applicant claimed that he followed Ms L’s advice and signed a number of “blank forms” she gave him “in the places she indicated”.  He also claimed he was told that he might have to “wait for years” before there was a final outcome.  He claimed that from 2001 until about 2004, he continued to contact Ms L’s office “every two to four months” and that during these phone calls Ms L, or someone in her office, said words to the effect that they did not have any further news about his case, that he should keep waiting and that he would be contacted as soon as there was an outcome.  He claimed he “continued to wait on the outcome” and “never received any correspondence about the progress of [his] application or the class action.” 

21. Departmental records reveal that on 6 October 2000 the applicant made a request for access to documents through Ms L seeking “[t]he refugee application document in the Department of Immigration and RRT include the refused (sic) letters”.  The request included both the Departmental and Tribunal file numbers.  That document bears an English language signature in the name of the applicant dated 3 October 2000.  The completed consent to Ms L acting as the applicant’s agent on this form also bears an English language signature in the applicant’s name.  The postal address given for the applicant was the same as Ms L’s address. The applicant claimed that he could not recall signing any such documents and said that he had signed blank documents for Ms L.

22. On 12 October 2000 the Department wrote to the applicant care of Ms L, stating that the signature on his authority was dissimilar to the signature on the Departmental file and seeking a completed authority signed by the applicant in his ethnic script.  This was done by a form dated 18 October 2000 that was received by the Department on 23 October 2000.  On 27 October 2000 a decision was made in relation to the applicant’s request for access to documents and material was provided to him care of Ms L. 

23. The applicant’s name, personal details (including a Surry Hills address), references to both the Departmental and Tribunal file numbers and the date of the Tribunal decision were included in a Schedule of Represented Parties dated 18 December 2000 in relation to the proceedings in the High Court of Australia in “Muin” (as to which see Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966; [2002] HCA 30), No. S36 of 1999. That document stated that Adrian Joel & Co were solicitors for the applicant as “represented party”.  The copy before the court also bears facsimile markings indicating that it was faxed by Adrian Joel & Co on 5 April 2001.  It is not disputed that the applicant was a party to the Muin proceedings in the High Court. 

24. On 22 December 2000 the Department received an application for a bridging visa E in the name of the applicant dated 20 November 2000 in which he was said to have the same Surry Hills address as appears on the Schedule of Represented Parties.  The application bears an English language signature in the name of the applicant.  This application stated that the applicant received the help of Adrian Joel & Co. Solicitors in completing the form.  It stated that a protection visa had been applied for and refused.  It also referred to an application for review by the Tribunal which was refused and stated that the applicant was a party to the Muin class action and that the bridging visa was sought on this basis.  The applicant said that he did not know whether the signature on this form was his signature or not, but stated that he had signed blank forms for Ms L. 

25. Also before the court is a copy of a further application for a bridging visa E dated 30 April 2001 containing similar information (but a Seven Hills address for the applicant has been inserted by handwritten amendment).  In response to the question:

    Why did you not depart Australia before the expiry of your visa or after your application was refused?

    The following answer was written:

    Waiting for the Federal Court decision for the class action.

26. This application form stated that help was provided by Ms L.  Again it bears a signature in the name of the applicant in the English language.  The applicant claimed that he did not know whether it was his signature or not. 

27. The Department also received a completed form of appointment of Ms L to act as agent for the applicant dated 30 April 2001.  That form also contains the Seven Hills address for the applicant as a handwritten correction to the Surry Hills address.  It also bears a signature in the name of the applicant in English, and the applicant again claimed that he did not know whether it was his signature. 

28. In addition, on 3 August 2001 the Department received a completed change of address form dated 30 July 2001 in the name of the applicant giving a new residential address in Parramatta Road, Auburn (in lieu of the Seven Hills address).  That form provided Ms L’s postal address as the postal address for the applicant.

29. As detailed in the affidavit of Benjamin Fogarty affirmed on 2 March 2010, attempts by the solicitors for the applicant to obtain the files for the applicant maintained by Mr Joel and by Ms L have been unsuccessful.  According to information provided to Mr Fogarty, Mr Joel indicated that Ms L had the file, but Ms L could not find the file and she suggested that it may be “too old”.

1. According to the Department’s computer records the applicant was recorded as a member of the Muin class action from 15 December 2000 to 12 July 2003.  The records state that “Muin/Lie Class Actions Withdrawn by order of the High Court on 20/06/2003”. 

2. Counsel for the applicant tendered copies of transcripts of proceedings before the High Court in May and June 2003 in relation to represented parties in the Muin and Lie class actions.  It is apparent from this material and also from the decision of Emmett J in Applicant S1174 of 2002 v Refugee Review Tribunal and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 325; [2004] FCA 289, that each of the represented parties in the Muin proceedings was an unsuccessful applicant for a protection visa.  In each case a delegate of the first respondent had refused an application for the protection visa, the applicant had sought review by the Tribunal and in each case the Tribunal had affirmed the delegate’s decision.  The Muin proceedings took issue with aspects of the Tribunal procedure.

3. Relevantly, on 25 November 2002 Gaudron J made orders that leave be granted to any of the persons named in the schedule to the statement of claim in both the Muin and Lie proceedings to file an individual application in the High Court seeking an order nisi in relation to the relevant Tribunal decision.  Any such application was to be filed on or before 1 June 2003.  Her Honour ordered that upon filing of any such application, the name of the applicant in that application be deleted from the schedule of persons annexed to the statement of claim in the Muin proceedings.  Gaudron J also ordered that any such individual applications should be remitted to the Federal Court of Australia to be determined, but that otherwise, subject to any application for an extension of time, proceedings in the class action would stand dismissed from midnight on 30 May 2003.  An application for an extension of time to file individual applications for orders nisi came before McHugh J on 23 May 2003.  McHugh J extended the time until 19 June 2003 in relation to represented parties in the Muin proceedings.  On 16 June 2003 the orders were amended to extend the time to 20 June 2003. 

4. There is no suggestion that the applicant in these proceedings filed an individual application in the High Court seeking an order nisi in relation to the decision of the Tribunal as provided for in the orders of Gaudron J.  There is no suggestion that any matter involving the applicant was remitted to the Federal Court.  According to the affidavit of Benjamin Fogarty affirmed on 2 March 2010, Mr Fogarty made inquiries with the registry of the Federal Magistrates Court and was advised that there is no record in the databases of this court or the Federal Court of the applicant ever having made an application to either court (apart from these proceedings). 

5. Notwithstanding that the applicant’s evidence is that he contacted Ms L’s office every two to four months from 2001 until 2004, he claimed that he had “never received any correspondence about the progress of … the class action”.  His claim is that at this stage he was still unaware of the progress of the protection visa application and that he was not aware of the Tribunal decision. 

6. The applicant’s evidence does not address why he stopped contacting Ms L’s office in 2004, or events thereafter, until November 2006.  He claimed that in about November 2006 he spoke to a woman from his church congregation (known to him as “Mary”) about his protection visa application and his concerns about returning to China and that she advised writing to the Minister for Immigration. According to the applicant, Mary suggested that she would help him write a letter in English based on other letters she had seen written by other Chinese refugees. The applicant gave her notes about his life in China. He wrote to the Minister by letter dated 22 November 2006 asking him to consider exercising his power under s.48B of the Act to allow him to lodge a fresh application for a protection visa on the basis that new issues were raised that may enhance his claims for protection. That letter set out claims about what occurred in China which are not the same as those made in the protection visa application. It referred to lodgement of an application for a protection visa with the assistance of Mr Q. The letter claimed that the applicant had signed “blank forms and papers” and that he was “advised by Mr [Q] that [he] would have a chance to meet a DIMA officer in person, discussing [his] claims face-to-face”.  The letter (signed in Chinese characters) also stated:

   … I waited and waited for a long time; and until one day, I suddenly found that Mr [Q] had been missing, and I even found that his officer (sic) had been closed. 

   After that, I have visited many migration agents, but no one could offer me any actual helps (sic), except asking for the money. 

   I have to accept that it is my own mistake which led me lose valuable opportunity; and actually, I have known nothing about contents in my protection application;  and everything was put by Mr [Q] who had never informed me clearly what he had done for me.

7. On 15 December 2006 the Ministerial Intervention Unit advised the applicant that his request had been assessed and would not be referred to the Minister for consideration under s.48B.

8. On about 22 December 2006 the applicant again wrote to the Minister. He claims that this letter was written with the assistance of Mary. That letter bears a signature in the English language. That letter made a second request under s.48B of the Act, contended that the applicant had been “cheated by a notorious and demoralized migration agent”, that he was a “victim” who had been “…treated unfairly and improperly since [he] came to Australia”, and included a supporting letter from a pastor of the applicant’s church. 

9. On 15 January 2007 the applicant was advised that his request had been assessed and would not be referred to the Minister for consideration under s.48B.

10. On or about 1 February 2007, the applicant wrote to the Minister making a request under s.417 of the Act. The applicant says that this letter was written with the assistance of Mary. That letter asked the Minister to consider substituting for a decision of the Tribunal another decision more favourable to the applicant. It set out the applicant’s claims about what he says occurred to him in China and concluded by asking the Minister again to substitute a more favourable decision for a decision of the Tribunal. Each of these letters provided a residential address in Auburn for the applicant and the second and third letters also gave a post office address in Auburn.

11. The applicant was advised by letter dated 23 April 2007 that while s.417 of the Act provides the Minister with the power to substitute for a decision of the Refugee Review Tribunal a decision more favourable to the applicant, his case had been assessed but the additional information provided did not bring it within the Minister’s guidelines so that no further action would be taken in respect of the request.

12. The applicant claimed that in about May 2007 a pastor at his church advised him that he could seek help from the Refugee Advice and Casework Service (RACS), that he went to the RACS office and had a meeting with the assistance of an interpreter and the pastor and that he told the RACS case worker that he did “not know what [was] happening with [his] application because [he did] not understand the Australian immigration system” or “why [he had] to wait so long for a result.” 

13. With the assistance of RACS, the applicant made an FOI application in about mid‑2007.  He received a bundle of documents in response in June 2008.  He claimed that because almost all the documents were in English he asked a friend to interpret, that she advised him that his application for a protection visa had been declined and that he said that was “impossible” as his “migration agents would have told [him] if [his] application had been declined.  

14. According to the applicant this was the first time that he was made aware of the fate of his protection visa application.  He claimed that he did not know any of the Bankstown, Pitt Street or Haymarket post office box addresses.  His evidence is that the claims in the protection visa application were not his claims. 

15. The applicant acknowledged that the signature on the protection visa application and the review application resembled his own Chinese and English signatures, but stated that he could not recall whether he had signed such documents in blank.  He claimed that he had not been informed by Mr Q that he was going to submit an application for review to the Tribunal on the applicant’s behalf and that the applicant did not ask him to do so.  He also said he had never seen a copy of the letters from the Tribunal, including the hearing invitation letter and the letter dated 16 November 1998 enclosing the Tribunal decision.  He claimed that had he known he could attend a Tribunal hearing he would have done so; had he known that his application to the Tribunal had been rejected, he would have sought advice about whether he could appeal; and had he known he had a right of appeal he would have appealed immediately.

16. The applicant does not address the period from mid-2008 to June 2009 in his evidence, except that he claimed that on Mary’s advice he wrote to the Minister again and received a response on 27 October 2009.  There is no evidence as to the date or content of such a letter before the court. 

17. The applicant was detained in June 2009.  He claimed that a case officer told him that he had exhausted all avenues and would be deported; that he said he would write to the Minister and that he was not told he could appeal to the Federal Magistrates Court.  He claimed that he did not know this was a possible course of action until he was informed by a fellow detainee in September 2009.  In October 2009 he spoke to a social worker involved with Balmain for Refugees and told her he would like to make an application to appeal to the Federal Magistrates Court.  She assisted him to prepare his application and supporting affidavit.

18. In both the original application and the amended application the applicant sought review of the Tribunal decision on the basis of fraud on the Tribunal by his former migration agent, Mr Q.  The amended application elaborates on the basis on which it is contended that the “fraudulent conduct of the migration agent engaged by the Applicant prevented the Tribunal from exercising its jurisdiction in the proper manner.”  The particulars include claims that “[w]ithout the Applicant’s knowledge, Mr [Q] included in the Visa Application false claims for protection relating to the Applicant’s alleged involvement in the Yi Guan Dao religion”; “[w]ithout [his] knowledge and contrary to instructions, Mr [Q] failed to include in the Visa Application claims for protection relating to the Applicant’s involvement in political protest and Christianity; “[w]ithout [his] knowledge, Mr [Q] prepared and filed an application to the Tribunal for a review of the decision by the Minister not to grant the Applicant a protection visa”; and that this application “falsely stated the Applicant’s home address and address for service, the effect of which was that the Applicant did not receive notice of his hearing before the Tribunal”.

19. The amended application contains an additional ground which is that the Tribunal “failed to exercise its jurisdiction because it did not give the Applicant proper notice in relation to the hearing it had scheduled for him to attend”. The particulars of this claim are that the hearing invitation letter of 28 September 1998 did not constitute a proper notice under s.426 of the Act as it failed to inform the applicant of the effect of s.426(2) of the Act. At that time s.426(2) provided that: “The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice”.  The particulars stated that the letter failed to make reference to the seven day period.

20. The grounds relied on in the amended application in support of the application for an extension of time are that the applicant has “reasonable prospects of success which justify the grant of an extension of time”;  that he “commenced proceedings promptly upon becoming aware of his right to make an application to this Court”;  that the “conduct of the migration agent engaged by the Applicant, and the Applicant’s subsequent inability to obtain legal advice, contributed to the Applicant’s failure to commence these proceedings within the required time”; and that the applicant would “incur serious prejudice (including the risk of deportation) if the extension of time [was] not granted”.

21. In oral submissions counsel for the applicant and the solicitor for the first respondent each referred to authorities in relation to an extension of time to appeal, but provided a list of authorities relating to s.477 of the Migration Act.

22. There is no dispute that the first limb of s.477(2) has been met in this case by the written application for an extension of time in the application and amended application. Hence it is necessary to determine whether I am satisfied that it is “necessary in the interests of the administration of justice” to extend the time for making the application to review the decision of the Tribunal. 

23. The notion “in the interests of the administration of justice” has been considered in many contexts (see the discussion in Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM). Relevantly, in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, Nicholls FM (at [44]) identified a number of circumstances relevant to the second limb of s.477(2), being:

    1.  The extent of the delay and the reason for the delay.

    2.  Whether there is any merit in the application.

    3.  Whether there is any prejudice to the respondents.

    4.  The impact on the applicant.

    5.  The interests of the public at large.

    6.  The Court’s discretion itself.

24. In Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591, Stone J suggested (at [35]) that the concept “…in the interests of the administration of justice” in s.477(2)(b) “…would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.”  (Also see Metera v Administrative Appeals Tribunal and Another (2008) 105 ALD 18; [2008] FCA 1627 at [22]).

25. Similarly in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 Smith FM stated (at [11]):

    The considerations which might bear on that discretion are unconfined.  As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40] – [41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weight all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.

26. I am of the view that in determining whether it is in the interests of the administration of justice to extend the time for an application, it is necessary to have regard to all of the relevant circumstances but the factors referred to in SZMFJ provide a convenient starting point.  

Delay

1. The delay in this case is significant, particularly when seen in the context of the 35 day time limit now applicable under s.477(1) of the Act. The Tribunal decision was made on 15 November 1998. The application for review was filed just short of 11 years later on 2 November 2009. While the extent of the delay must be balanced against the reasons for delay (as Lucev FM suggested in WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [29]), for the reasons given below, I am of the view that the applicant has not provided a reasonable explanation for such an inordinate delay in seeking judicial review.

2. The applicant relied on his affidavits of 2 November 2009 and 15 January 2010.  Those affidavits provide no explanation for his failure to make enquiries about the fate of his protection visa application for much of 2000 and from 2004 to late 2006.  Nor did he satisfactorily explain why he failed to seek review of the Tribunal decision between mid-2008 and mid-2009 (except for a reference to a letter to the Minister).  His claims, if he is to be believed, involve accepting that notwithstanding his regular telephone contact with Mr Q’s office during the period in which his protection visa application was refused, his review application was lodged and the Tribunal made its decision, the applicant was not informed of any of these events.  Further, it appears from his evidence that he made no enquiries of Ms L as to the results of her October 2000 request for access to documents (which, I note, referred to both Departmental and Tribunal file numbers and “refused (sic) letters”) notwithstanding his claimed concern about the progress of his protection visa application.  On his evidence he did not enquire about the content of any of the documents he signed, including the bridging visa applications based on his involvement in a class action relating to review of the Tribunal decision.  On his evidence it would appear that he did not enquire about the nature of the class action.  Nor, on his evidence, did the applicant know the content of the letter to the Minister written with the assistance of Mary seeking substitution of a decision more favourable than the Tribunal decision. 

3. While I accept that the applicant did not directly receive the letters containing the Departmental decision, the hearing invitation and the Tribunal decision (as the copies sent to the address provided for the applicant were returned to sender), as discussed further below, it is simply implausible that, notwithstanding the steps he took between 1998 and 2008, the applicant remained unaware of the results of his protection visa application and Tribunal review. 

4. The applicant was cross-examined on his affidavit evidence.  His evidence, particularly in relation to whether and in what circumstances he signed documents and about his “signature”, was unsatisfactory and at time evasive. 

5. If one were to accept the applicant’s contention that he remained ignorant of the progress of his application and the Tribunal decision through the period prior to mid-2008, it is apparent that such ignorance would have been maintained in the face of assistance not only from Mr Q, but also from Ms L, participation in the Muin class action, obtaining bridging visas on that basis, obtaining material from the Department in connection with those proceedings and thereafter through the assistance provided by a member of his congregation in writing to the Minister and the assistance of RACS in May 2007.  The applicant conceded that he made no effort to contact the Department at any time during this period to determine the fate of his application.  When he did obtain information in response to the FOI request that was translated for him by a friend in June 2008, he still took no action to seek advice about whether he could seek judicial review of the Tribunal decision or to initiate such proceedings until after he was detained in mid-2009.

1. The applicant’s contention is that he did not become aware that there had been a decision by the Tribunal, let alone that there had been an application to the Tribunal, until the results of the FOI inquiry were explained to him in June 2008, nearly nine and a half years after the Tribunal decision and notwithstanding the actions that were taken on his behalf and documents lodged on his behalf during the intervening period.  However in all the circumstances I do not accept the applicant’s evidence in this respect.  It is implausible that it was not until June 2008 that he became aware of the fact of the Tribunal review application and outcome.  Moreover, he failed to provide a satisfactory explanation for a significant part of the delay after the time he said he became aware of the Tribunal decision in June 2008. 

2. In addition to the general concerns about gaps and implausibilities in the applicant’s evidence, I note first that while I accept that the applicant did not recall whether he had signed particular documents, notwithstanding his evidence that he did not know whether the letter to the Minister of 14 December 1998 bore his signature as he could not identify whether or not it was his signature and he sometimes signed blank documents without any content, I am not persuaded that he provided a signature on the middle of a blank page which subsequently became this letter or that if he did so, he did so without making any inquiry whatsoever of Mr Q as to the reason for and nature of such a letter.  

3. The applicant’s claim that a residential address other than his residential address was used in documents filed by Mr Q is consistent with his evidence that he told Mr Q that he did not have a permanent address and provided him only with a phone number.  There is, however, no evidence that the applicant provided Mr Q with his residential address. 

4. In any event, even if in late 1998 the applicant was unaware of the nature of the letter of 14 December 1998 and also that his application to the Tribunal had been refused, his explanation for what occurred from 2000 in connection with his involvement with Ms L and participation in the Muin class action is even more unsatisfactory. Ms L advised the applicant that she could make a request to find out the status of his application and that she could join him to a class action.  Somehow, and there is no evidence as to how this occurred, she made an application on behalf of the applicant for documents, including both the Departmental and Tribunal files referred to by file numbers. She sought documents including the “refused (sic) letters”. On the applicant’s evidence it would be necessary to believe that notwithstanding that these steps were taken and that Ms L had to obtain his signature to a second request because the first was signed in Roman script rather than Chinese characters, he made no inquiries and was given no information as to the results of the inquiries made by Ms L about the progress of his protection visa application. Further, one would have to accept that he was not told (beyond the general reference to a class action) and took no steps to find out about the nature of proceedings to which he had become a party in the High Court which depended upon there having been a review by the Tribunal.

5. Moreover, the applicant’s involvement in two applications for bridging visas in November 2000 and April 2001 on the basis of his participation in the Muin class action is not satisfactorily explained on the evidence before the court.  These applications refer not only to refusal of the protection visa application, but also to refusal of the review application.  The applicant could not remember whether he had signed these forms and did not know if they were his signatures, but suggested that Ms L had him sign blank forms.  No satisfactory explanation has been provided for the applicant’s claimed lack of knowledge about the Tribunal decision at the time that he dealt with Ms L and was involved in the class action. 

6. It is also of concern that the applicant claimed that from 2001 until about 2004 (by which time his application had been dismissed by the High Court) he continued to contact Ms L’s office every two to four months, but that during these phone calls Ms L (just like Mr Q) had basically told him that nothing had happened and he would be contacted as soon as there was an outcome, notwithstanding what had occurred in the High Court proceedings. 

7. I am satisfied on the material before the court that an inference can be drawn that at least at the time the applicant applied for a bridging visa in November 2000 in association with his participation in the Muin class action, he was aware that his Tribunal application had been unsuccessful.  I note that there has been no attempt to explain the delay up to that time on any basis other than the applicant’s claimed ignorance of the Tribunal application and decision.  He did not, for example, claim that he knew of the Tribunal decision but was unaware of the availability of judicial review at that time. 

8. It is the case that in 2006 and 2007 the applicant wrote to the Minister.  However again, notwithstanding that he claimed to rely on the assistance of Mary, who indicated she would help him write a letter based on other letters she had seen, and notwithstanding that one of these letters referred specifically to substituting a more favourable decision for a Tribunal decision, the applicant claimed he was not aware that there had been a Tribunal decision in his case.  Such a claim would appear to suggest that yet again, the person assisting the applicant had not provided him with any information about what was being done on his behalf, notwithstanding that this person was said to be a member of the applicant’s congregation.  I do not accept that at this time the applicant was unaware of the Tribunal decision. 

9. Furthermore, when the applicant received a response to his FOI request in June 2008, included in the documents provided was the correspondence to him from the Tribunal dated 16 November 1998 enclosing a copy of the Tribunal decision. He provides no explanation for why, given that that letter had advised that he had a right to seek judicial review of the decision in the Federal Court within 28 days (that being the court with jurisdiction in 1998) and advised him to seek legal advice before seeking review by the court, he took no action, despite his claim that had he known he had a right of “appeal” he would have appealed immediately.

10. The applicant’s failure to commence judicial review proceedings before he was detained at Villawood in June 2009 is not satisfactorily explained (and see Vu v Minister for Immigration and Citizenship and Another (2008) 101 ALD 211; [2008] FCAFC 59 at [29] – [32] which is discussed further below) in relation to the claim that he wrote to the Minister again).

11. In my view, there has been an inordinate delay.  There is not an acceptable explanation for the delay prior to the time at which the applicant was detained. 

Merits of the application

1. It is also relevant to have regard to the merits of the present application.  Obviously, if the court determines that a substantive application is without merit, then an extension of time may be refused.  In this case it cannot be said that the substantive application is without merit.  However in assessing “merit” in circumstances where an application for an extension of time is being determined as a preliminary question prior to consideration of all the evidence that would be before the court in relation to a final hearing, as Lucev FM pointed out in WZANW at [37], the assessment must be “broad”, involving “a consideration of the outline of the case, in relation to which the party seeking the extension (here, the applicant) bears the burden of persuasion”.  It is not appropriate in these proceedings to make findings about the applicant’s claims of third party fraud, insofar as oral submissions for the parties raised such a possibility.  All of the evidence that might be relied on in a substantive hearing of an allegation of third party fraud is not necessarily before the court. 

2. In considering whether there were “special reasons” in relation to an application for an extension of time within which to appeal in Vu v Minister for Immigration and Citizenship and Another, Jessup J stated the following (at [14]) in relation to the relevance of the merits of a proposed appeal:

   …  It is hard to see how the good prospects of a proposed appeal should of themselves be regarded as constituting "special reasons" for the purpose of O 52 r 15(2).  The provision is concerned with reasons justifying a departure from the ordinary rule that an appeal must be lodged within 21 days, not with reasons for anticipating a successful outcome on the part of the appellant.  However, the apparent weakness of an intending appellant’s prospects might often be included amongst the considerations by reference to which the discretion under r 15(2) is not exercised in favour of him or her.  That is to say, it will often be appropriate for the court to regard the apparent existence of reasonable prospects on the proposed appeal as a necessary, but not as a sufficient, condition for the grant of leave to file a notice of appeal out of time.

3. Similarly, it may be said that the apparent existence of reasonable prospects of establishing jurisdictional error would be a necessary, but not a sufficient, condition for the grant of an extension of time under s.477(2) of the Act as that section is concerned with circumstances justifying a departure from the ordinary rule in s.477(1) that an application must be lodged within 35 days.

4. Another way of looking at this issue that is of particular relevance given the preliminary determination of the extension of time application, is that “the longer the delay without reasonable explanation, the stronger would need to be the argument on the substantive merits” (as Heerey J suggested in VQANv Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 at [23]) in relation to the exercise of the discretion to refuse relief.

5. The first respondent conceded that the hearing invitation letter of 28 September 1998 contained the defect referred to in ground two of the amended application.  Prima facie this means there was a failure to follow a procedure under the Act. Such a failure may constitute jurisdictional error. However the first respondent submitted that in any substantive hearing it would be argued that while this was an error, it did not amount to a jurisdictional error (see Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58). It was pointed out that counsel for the applicant had referred generally to the approach of the Full Court of the Federal Court in Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584; [1999] FCA 7 in which an error, such as appears in the hearing invitation letter in the present case, was regarded as a failure to comply with s.426(1) of the Act as it stood at the relevant time. However the applicant in Sook succeeded on review on the ground provided for in the former s.476(1)(a) of the Act, which applied to a failure to observe a procedure required by the Act or Regulations, not on the basis of a claim of jurisdictional error. The first respondent contended that it was arguable in the circumstances of this case that the error in question did not constitute a jurisdictional error and, in any event, that if there was a jurisdictional error involving a failure to comply with the requirement to refer to the seven day period provided in s.426(2) for an applicant to give written notice of witnesses to the Tribunal, this had not been shown to be such as to have had any effect on the applicant’s ability to advance any evidence that he wanted to advance or to present his case (see Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449; and SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84).

6. These submissions do not establish that ground two in the amended application is not arguable. However, as the first respondent also contended, a significant issue would arise as to whether or not relief should be granted if the court was satisfied that the failure to specify in the hearing invitation letter that the applicant had seven days to give written notice about witnesses constituted a jurisdictional error. Indeed perhaps some guidance as to the considerations relevant in a case such as this is to be found in cases in relation to the exercise of the discretion to grant relief where a jurisdictional error is established (see VQAN and also see S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492; [2004] FCAFC 283).

7. In those circumstances an unwarrantable and unexplained delay may justify the withholding of relief. In that context, an approach to the Minister under s.417 of the Act is not, according to Vu (and also see Alzoubi v Minister for Immigration & Anor [2009] FMCA 689 at [15]) an acceptable explanation for an applicant’s delay in seeking judicial review. An extensive delay and the lack of a satisfactory explanation would be factors that would be relevant to the exercise of the discretion as to whether relief would issue (see Re Refugee Review Tribunal and Another; Ex parte Aala at [52] and at [55] per Gaudron and Gummow JJ and SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 at [80] and [84] per McHugh J). I also note that in SZKGF v Minister for Immigration and Citizenship (at [13]) the Full Court of the Federal Court declined to grant relief where:

   … the clear absence in this case of any practical injustice or even inconvenience to the appellant resulting from the postcode error is such that, were we to find that there had been a jurisdictional error, we would, in the exercise of our discretion decline to grant relief.

   (Although cf SZIZO and Others v Minister for Immigration and Citizenship and Another (2008) 172 FCR 152; [2008] FCAFC 122).

8. In this case there is an unwarrantable delay, only a very small part of which is explained by what occurred after the applicant was taken into detention. There is not a reasonable explanation for the delay prior to that time. In my view, the delay in this case is such that relief would be refused even if the error relied on in ground two of the amended application was a jurisdictional error. In making these comments, I am mindful of the remarks of the Full Court of the Federal Court in SZIZO at [97].

9. As to the ground of migration agent fraud, it is difficult to assess the merits of this ground in the absence of all the evidence that might be before the court in such proceedings.  It is the case that, consistent with the approach taken by the High Court in SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189; [2007] HCA 35, a third party’s fraudulent conduct may have the effect of stultifying the operation of the natural justice provisions in Division 4 of Part 7 of the Act where the third party is fraudulent in a way that affects the Tribunal’s decision‑making process. However where, as in this case, much of the conduct complained of consists of what can be described as omissions, it is relevant to bear in mind that before an omission can be said to have occasioned a fraud on the Tribunal “…it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant” as Jagot J pointed out in SZMWT v Minister for Immigration and Citizenship and Another (2009) 109 ALD 473; [2009] FCA 559 at [20]. Further, as was made clear in Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501; [2008] FCAFC 17 at [33] (and also see SZFDE):

   The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.

10. In this case there is no suggestion in the applicant’s case of any motivation on the part of Mr Q for dishonest conduct. Even if there need not be evidence of motivation (see SZMWT), this is not a case in which, as in SZMWT, there was any concealment of a third party’s involvement from the Department or the Tribunal. There is no suggestion that Mr Q was not a registered migration agent. This is not a case in which there were negative answers about the migration agent’s involvement on the forms provided to the Department or the Tribunal, such as could be described as dishonest in the manner characterised by Jagot J in SZMWT (at [21]). Nor is there any evidence that Mr Q told the applicant that he would look after everything else, thus relieving him of the responsibility to do anything more (as occurred in SZMWT). There are also aspects of the evidence before the court that would not assist the applicant (for example, his failure to provide his address to Mr Q). The credibility of his claims about his ignorance of the review application and of the hearing invitation (at that time) would have to be determined.

11. It is the case that in SZIVK v Minister for Immigration and Citizenship [2008] FCA 334, Finkelstein J indicated that there was no justification for a Federal Magistrate to refuse to decide whether a migration agent had acted fraudulently on account of lack of notice to the migration agent, but that does not mean that the substantive merits should be considered on the assumption that Mr Q would not give evidence at a hearing. It is indisputable that what would be before the court are events that occurred some considerable time ago, from 1996 to 1998.

12. The fact that a claim can be formulated in terms of jurisdictional error cannot of itself be indicative of reasonable prospects of success.  Nor is it appropriate in proceedings such as this, where the question of an application for an extension of time is to be decided as a preliminary question, to reach conclusions about whether to accept aspects of the applicant’s evidence in relation to what would be a ground relied on in the substantive proceedings in the absence of all the evidence that would be before the court in such proceedings (including material on which he might be cross‑examined).  Such prospects as the applicant has on the face of the material before the court must be weighed in the balance, taking into account the extraordinary and unsatisfactorily explained delay in the commencement of these proceedings.

13. While it cannot be said that the grounds relied on by the applicant have no prospects of success, or are not arguable, the material before the court is not such as to demonstrate a case of such strength that it outweighs the extremely lengthy delay and the absence of a reasonable explanation for that delay.

Prejudice to the respondents

1. Given that it cannot be said that there is no merit at all in the substantive application, in that sense this is not a case in which it is clear that the first respondent would be put to the burden and cost of additional litigation in circumstances where there was a lack of merit in the substantive application (see SZFMJ at [195]).  The passage of time may have an impact on the ability of the respondents to put evidence before the court about events of 1996 to 1998 involving a third party, but there is no evidence before the court addressing this issue specifically. The respondent did not submit that the applicant’s involvement in the Muin class action was a factor that weighed against the exercise of discretion (cf SZJTK v Minister for Immigration & Anor [2009] FMCA 543).

Impact on the applicant

1. Rejection of the application for an extension of time will, I accept, have a significant impact upon the applicant as, unless he has some other avenue for extending his time in Australia, he will at some point in time be required to leave Australia and return to China.  While it cannot be for this court, which is not the fact‑finder in relation to an applicant’s claims for refugee status, to determine whether there would be likely to be any adverse consequences for an applicant if he or she returned to his or her home country, it is nonetheless relevant to note the applicant’s claims in this respect. 

The interests of the public at large

1. In SZMFJ Nicholls FM (at [194]) pointed to the fact that:

   The interests of the Australian public at large would plainly not be served with the refoulment of a refugee to a country of claimed persecution.

2. I have borne this in mind insofar as it is possible to do so in circumstances where, while the Department and Tribunal have found that the applicant was not a refugee, those bodies acted on the basis of claims that the applicant now insists are not his claims.  

3. It is also relevant to have regard to the interests of the public in the avoidance of delay, expense and protraction of legal proceedings and the obligations on this court in that respect.  In Re Commonwealth of Australia and Another; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67 McHugh J stated that an “extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties” and continued (at [15] – [16]):

   …  Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.  …

   Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.  As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed".  The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision.  The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court.  …  (Footnotes omitted). 

4. The same may be said in this case in light of the extensive unwarranted delay in circumstances where I am satisfied that the applicant was aware of the decision of the Tribunal. 

Other matters and Conclusion

1. I have borne in mind the submissions to the effect that there would be no appeal to the Federal Court if this court refused the application for an extension of time. However this is not a case where there is (or necessarily would be) an opinion of this court in relation to a point of construction of the Act or an issue raised that would warrant allowing the application for an extension of time so that a decision of this court on the merits could be considered by the Federal Court (cf Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40] –[41] and see SZNYJ v Minister for Immigration & Anor [2009] FMCA 1029). I also note that s.426 in the form relevant to ground two has been considered by the Full Court of the Federal Court in Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584; [1999] FCA 7 and is no longer in that form.

2. On balance, for the above reasons, in all the circumstances I am not persuaded that the substantive grounds of judicial review have sufficient substance to overcome my lack of satisfaction about the applicant’s delay in seeking judicial review. 

3. Having considered all of the circumstances of this case, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the 35 day period within which an application must be made to this court under s.477 of the Migration Act. Accordingly the application for review of the decision of the Refugee Review Tribunal made on 15 November 1998 is out of time and should be dismissed as incompetent.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  26 March 2010