Tan v Minister for Immigration
[2010] FMCA 652
•27 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAN v MINISTER FOR IMMIGRATION | [2010] FMCA 652 |
| MIGRATION – Application for a Constitution writ arising out of the refusal of a delegate of the Minister to consider an application for a visa – operation of s.75 of the Act in respect to the issue of a Bridging visa – invalidity of subsequent steps – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 75, 189, 417, 476, 501 Migration Regulations 1994 (Cth), regs.050.516, 2.24 Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(c) |
| Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia [1977] 139 CLR 54 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] 180 CLR 266 Brambells Holdings Ltd v Bathurst City Council [2001] NSWCA 61 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 |
| Applicant: | PETER KWONG CHIN TAN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 357 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 30 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Kanokwan Subhodyana of Christopher Levingston & Associates |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | DLA Phillips Fox (Mr G Johnson) |
ORDERS
The application filed on 23 February 2010 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application fixed in the amount of $11,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 357 of 2010
| PETER KWONG CHIN TAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a Constitutional writ arising out of the refusal a delegate of the Minister to consider the Applicant’s application for a Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) visa.
Amended application
The Applicant applies for an order that the Respondent shows cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect to the following decision:
Decision details
A decision made by the Respondent’s servants at Sydney communicated to the Applicant by fax on or about 17 February 2010 to determine the application made on that date is invalid.
The decision was made under s.46 and s.47 of the Migration Act 1958.
Grounds of Application
Ground 1
The decision maker has fallen into jurisdictional error
Particulars
The decision maker determined that the Applicant’s application on 17 February 2010 was invalid by reason of the purported exercise of s.501 on or about 23 November 2007.
There has been no valid exercise of the power under s.501 on or about that date, or at all.
Evidence
A Court Book (“CB”) was prepared by the First Respondent’s solicitors and is marked “Exhibit A”.
The solicitor for the Applicant relied upon the affidavit of Christopher Hugh Levingstone affirmed on 10 June 2010 and filed in the Court Registry on 11 June 2010.
Counsel for the Respondent read the affidavit of Gregory Joseph Johnson which was affirmed 20 July 2010 and filed in the Registry of this Court on the same date.
Background
In setting out the following background material I have either paraphrased or quoted directly from the written submissions of Mr J. Smith, counsel for the Respondent and the written submissions prepared for the Applicant by Mr C.J. Levingstone. I have not made further direct attribution as this would make the summary unwieldy. The information is provided to assist the understanding of the nature of the application and not to establish any evidentiary point.
The Applicant’s engagement with the Australian migration system is long and complex. He has applied for a number of different visas including a Protection Visa, Partner Visa and related Bridging visas. He has applied to both the Refugee and Migration Review Tribunals for reviews of the decisions unfavourable to him. He has sought judicial reviews of Tribunal decisions. He has applied to the Minister for the exercise of his power under s.417 of the Act. He has at every stage had the assistance of registered migration agents.
The critical facts occurred some years ago and are briefly stated. The Applicant claims to be a national of Singapore and arrived in Australia in 1991 under a false identity. He has been detained in Villawood Detention Centre from 15 July 2005 after completing a 12 year sentence for the importation of a commercial quantity of heroin.
On 26 September 2006, the Applicant lodged an application for a spouse visa. On the same day, a delegate of the Respondent refused to consider the application because it was not a valid application.
On 27 September 2006, the Applicant lodged an application in this Court seeking judicial review of the decision made that refused to consider his application for a spouse visa. On 28 September 2006 the Applicant lodged an application for a Bridging Visa on the basis of his application to this Court.. There is no issue arising out of the invalidity finding in respect of that application.
On 29 September 2006, an officer of the Department of Immigration sent the Applicant’s migration agent (an authorised recipient) a letter setting out a number of matters relevant to the Bridging visa application and invited a written response (CB 6-8).
The letter contained the following paragraph:
Please note that a decision on your Bridging Visa E (WE-050) application will be made by 2:00pm Tuesday 3 October 2006. If you require further time to address the above, you have the option to request a five (5) working day extension of time. An extension of time request must be received at this office by 3:00pm Tuesday 3 October 2006.
Five working days after 29 September 2006 was 10 October 2006. Monday 2 October 2006 was a public holiday in New South Wales.
For the purpose of this summary, on 3 October 2006 the Applicant’s agent requested and was granted an extension until 10 October 2006 to comment on the information (CB 31.7). The agreement is denied by the Applicant and is the basis of the Application to this Court. It is claimed on behalf of the Minister that on the basis of this extension, the Applicant’s agent responded to the Department’s letter by facsimile dated 10 October 2006: (CB 9-10).
The Applicant’s comments on the information were received by a letter from the Department’s on 29 September 2006. On 10 October 2006, a Delegate of the Minister made a decision to refuse to grant the Applicant a bridging visa on the basis that the Applicant failed to satisfy criteria set out in 050.223 and 050.224 (CB 15 – 23). The Applicant applied to the Migration Review Tribunal for a review of the Delegate’s decision. On 19 October 2006 the Tribunal remitted the application for a Bridging visa to the Minister directing that the Applicant satisfied various criteria (CB 25 – 37).
On 20 October 2006, a Notice of Intention to Consider Refusal of a Visa Application under s.501 was sent to the Applicant’s agent. On 23 November 2007 the Minister made a decision to refuse to grant the Applicant a Bridging visa under s.501. Reasons for the decision were sent to the Applicant on 7 December 2007 (CB 44-60).
On 17 February 2010 the Applicant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residents) (Class BS) visa. On the same day, an officer of the Department notified the Applicant that his application was not valid because he had been refused a visa under s.501 (CB 299).
The Respondent has brought these proceedings in response to that refusal.
Legislative provision
The critical issue in this matter is whether there was an agreement within the meaning of s.75(2) of the Act to extend the time within which to grant or not to grant a Bridging Visa must be made. The section states:
When eligible non-citizen in immigration detention granted visa
(1) If:
(a) an eligible non‑citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and
(b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;
the non‑citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.
(2) The period in subsection (1) may be extended in relation to a particular application by agreement between the Applicant and the Minister.
Regulation 2.24(2)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribe a period of two working days. The Regulations state:
Eligible non-citizen in immigration detention (Act, s 75)
(1) For paragraph 75 (1) (a) of the Act (which deals with the class of bridging visa that may be granted to a non‑citizen in immigration detention), the prescribed classes of bridging visa are:
(a) Bridging E (Class WE) visa; and
(b) Bridging F (Class WF) visa.
(2) For the purposes of paragraph 75 (1) (b) of the Act (which deals with the time in which the Minister must make a decision on a bridging visa application), the prescribed period is:
(a) in the case of an application by:
(i) a non‑citizen who has been immigration cleared; or
(ii) a non‑citizen who is an eligible non‑citizen referred to in subregulation 2.20 (6);
2 working days; or
(b) in any other case -- 28 days.
Note The prescribed conditions for the purposes of section 75 are set out in:
(a) clause 050.612 in Schedule 2 (for a Bridging E (Class WE) visa); and
(b) clause 060.611 in Schedule 2 (for a Bridging F (Class WF) visa).
Schedule 2 050.516 of the Regulations provides:
050.516 In the case of a visa that is taken to have been granted by operation of section 75 of the Act (which deals with applications for bridging visas which the Minister does not decide within a short period) -- visa coming into effect on grant permitting the Applicant to remain in Australia for:
(a) 5 working days from date of grant; or
(b) if the Minister is satisfied, within 5 days from the date of grant, that the visa holder has made acceptable arrangements to depart Australia within 14 days from the date of grant -- 14 days from the date of grant.
Applicant’s submissions
Ms Subhodyana indicated to the Court that she relied upon the written submissions prepared by Mr Levingston which were as follows:
a)The Applicant was a person to whom s.75(1)(a) applied at the time of making his Bridging Visa E application on 28 September 2006.
b)It is claimed on behalf of the Applicant that there is no evidence of an extension of time agreed between the parties pursuant to s.75(2).
c)Pursuant to regs.2.24(1)(a), 2.24(2)(a)(i), the Minister was required to determine the Applicant’s Bridging Visa E application within two working days.
d)The Minister did not make a decision within this time restraint: reg.2.24(2)(a)(i); and the Applicant was granted a Bridging Visa E on 3 October 2006 by operation of s.75(1) of the Act. Thereafter the Applicant was the holder of a Bridging Visa E subject to a time limitation (5 working days) set out in sub-clause 050.516(a)(e). The Applicant then ceased to hold a Bridging Visa and became subjected to ongoing detention by virtue of his status pursuant to s.189 of the Act, from 10 October 2006.
e)Therefore the purported decision made by the Respondent’s servants on 10 October 2006 was void ab initio as there was no application for a Bridging Visa E made by the Applicant on foot at that date, or any time subsequently.
f)Thus, the Applicant submitted that there was no jurisdictional basis for an appeal to the Migration Review Tribunal and that the subsequent decision by the Tribunal on 19 October 2006 to remit the application to the Minister was beyond its jurisdiction.
g)The Applicant did not make a further application for a Bridging Visa E thereby depriving the Minister of any lawful basis for the purported decision made pursuant to s.501(1) of the Act on 23 November 2007.
h)The Applicant submits that the decision made by the Minister’s servant for the Applicant’s spouse visa application on 17 February 2010 was invalid as there was no subsisting visa to refuse under s.501(1) on 23 November 2007 and that the Minister’s servant had fallen into jurisdictional error in making that decision.
i)The Applicant seeks final orders under hearing rule 44.12(1)(c) of the Federal Magistrate Court Rules 2001 (Cth) to the same effect as sought in paragraphs 1, 2 & 3 of the Amended Application filed in Court on 30 July 2010.
Respondent’s submissions
Mr Smith of counsel filed written submissions advancing the following argument.
a)Section 75 of the Act deems an Applicant to have been granted a Bridging Visa in certain circumstances. The first is that an “eligible non-citizen who is in immigration detention makes an application for a Bridging Visa of a prescribed class”. That condition has been satisfied in this case. The second condition is that the “Minister does not make a decision, within the prescribed period, to grant or refuse to grant a Bridging Visa.” Regulation 2.24(2)(a) prescribes a period of two working days.
b)The prescribed period can, be extended in relation to a particular application by way of an agreement between the Applicant and the Minister: s.75(2).
c)The time at which the visa is deemed to have been granted is “at the time of that period”. When s.75 of the Act is read as a whole, “that period” must be referenced to the “prescribed period” referred to in s.75(1)(b) as extended by an agreement under s.75(2).
d)Thus, in order to succeed, the Applicant must establish that “that period” expired before 10 October 2006. He has not done so. Rather he has counted two working days from 29 September 2006 and his submissions merely say “there is no evidence of s.75(2) extension of time agreement between the parties”. That statement is incorrect. Furthermore, the Applicant bears the onus of proving the facts required to establish jurisdictional error.
e)The Department’s letter dated 29 September 2006 indicates that a decision was made on 3 October 2006, three working days after the application (2 October 2006 being a public holiday, does not satisfy the definition of a “working day” as defined in s.5 of the Act). The Department offered an extension of up to five working days if required. The Applicant requested an extension and this was granted. The decision was made on 10 October 2006, consistent with the extension. This is clear evidence of an agreement to extend the period within which the decision was to be made.
f)Therefore a decision was made within the prescribed period as extended, by agreement. The second condition required for the operation of the deeming provision does not exist.
g)Consequently, there was a decision that refused the Applicant a Bridging Visa. This was followed by a valid application to the Tribunal for a review, a decision to remit the decision, and a further decision by the Minister following from that remittal. The Minister exercised its discretion under s.501 when making the decision. That, in turn, formed a proper basis for the conclusion that the applications in February 2010 for a Partner (Temporary) (Class UK) visa and Partner (Residents) (Class BS) visa were invalid.
h)As there was no valid application for a visa, there was no duty on the Minister to consider an application. In the absence of a duty, the application for the issue of a writ of mandamus must fail.
In the event that a visa was granted on 3 October 2006 by way of a deeming provision, the Applicant’s subsequent conduct by applying to the Tribunal for review of the 10 October 2006 decision, corresponding with the Minister in respect of the Notice of Intention to Refuse to Grant the Visa and applying for other visas exercising the discretion of the Minister for Immigration and Citizenship, together with the long passage of time, warrants an order that the application should be dismissed in the exercise of the Court’s discretion.
Consideration
The documentation contained in the Court Book indicates that the “Application for a Bridging Visa E – sub-class 050” Form Number 1008 was submitted by the Applicant on 28 September 2006. In the bottom right hand corner of the front page of the application, there is a stamp identified as “Detention Review Officer Cited” which carries the date of 28 September 2006 the officer’s position, name and number (CB 1). The 28 September 2006 was a Thursday and there is no disagreement between the parties that two business days later was Monday 2 October 2006. However because of the intervention of the public holiday on that day, the next working day was Tuesday 3 October.
On Friday 29 September a departmental case officer wrote to the Applicant and his then agent, Mr Harry Chand of Saba Legal & Research Pty Ltd, indicating that there were a number of concerns held by the Department in connection with the application for the visa. Those concerns are set out in five separate paragraphs and summarised by the following:
In light of the above information and your previous non compliance with the Migration Act, which resulted in your detention, the department does not feel that any level of security requested would act as a sufficient deterrent for you to not breach your visa conditions. (8)
The letter contains an invitation to give a written response to the Department’s concerns and is expressed as follows:
You are invited to provide a written response addressing the Department’s concerns, or any other matters you feel should be taken into consideration when deciding your visa application. Please provide supporting evidence of your claims where possible.
Please note that the decision on your Bridging visa E (WE-050) application will be made by 2:00pm Tuesday, 3 October 2006. If you require further time to address the above, you have the option to request a five (5) working day extension of time. An extension of time request must be received by this office by 3.00pm Tuesday 3 October 2006.
(CB 8)
Mr Smith drew the Court’s attention to an apparent anomaly regarding the timing of the decision to be made by the delegate at 2.00pm and the request for the extension was required by 3.00pm. I accept the explanation advanced by Mr Smith that the decision made at 2.00pm but was not published andcould subsequently be withdrawn on the receipt of a request for an extension of time. A decision can be withdrawn pursuant to the principles established in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11.
On 3 October 2006 Saba Legal & Research Pty Ltd, the Applicant’s agent, wrote to the Detention Regularisation Application Team at the Compliance Department requesting the following:
RE: Bridging visa E Application for Mr Peter Kwang Chin TAN D.O.B 7/08/51.
We refer to the above matter and your letter dated 29 September 2006. We formally request that we require an extension for a period of a further five (5) working days from the day to respond to the request sought by the compliance in relation to the above matter. (affidavit of Greg Joseph Johnson affirmed 20 July 2010, Annexure “A”.)
This letter was forwarded by facsimile transmission and was received by the Department on 3 October 2006 at 12:06pm. The important aspect of this letter is that the agent requested an extension for a period of a further five working days to respond to the request sought by the compliance department in relation to the matter and this would mean that a decision would not be made on 3 October.
The understanding that a decision would not be made on 3 October 2006 was mutual, which is clarified by the facsimile response issued by the department and addressed to Saba Legal & Research Pty Ltd. The letter states:
I am writing in response to your notification dated 3 October 2006 informing the Department of Immigration & Multicultural Affairs that you require an extension of time to respond to the Department’s concerns in relation to your application for a Bridging Visa E sub-class 050.
Please be advised that your request has been accepted and a final decision of this application is now due, Tuesday 10 October2006. (affidavit of Gregory Joseph Johnson – Annexure “B”)
Saba Legal Research Pty Ltd wrote to the Department on10 October 2006 commencing the letter as follows:
RE: TAN, Peter Kwan Chin DOB 07/08/1951
We refer to your letter dated 29 September 2006 regarding the above matter.
The letter then sets out the migration agent’s responses to the Department’s letter of 29 September. (CB 9-10) I am satisfied that this letter indicates that the Applicant’s migration agent Mr H Chand held the view that the visa application was a live issue at the time of forwarding that correspondence to the Department at 13:13 on 10 October.
The Department notified the Applicant and his agent by letter dated 10 October 2006 which was forwarded by facsimile transmission and contains the following:
I am writing in response to the Bridging Visa E, sub-class 050, application that was cited by a Detention Review Officer on 28 September 2006.
A Procedural Fairness Letter was faxed to you on 29 September 2006 advising that the Department is not considering your release from immigration detention inviting you to respond.
A written response was received at this office on 10 October 2006 which I have taken into consideration however given your past migration history and non compliance with the Migration Act 1958, which has subsequently resulted in your second detention, I regret to inform you that a decision has been made to review the grant of a Bridging visa the sub-class 050.
Please find following the Decision Notification.
You may seek a review of this decision by applying to the Migration Review Tribunal (MRT) no later than Thursday, 12 October 2006. (CB 14)
The Migration Review Tribunal’s decision MRT case number 060855554 of Tribunal member Jennifer Ciantar dated 19 October 2006 under the section “Jurisdiction and Standing” commences with the following statement:
The visa Applicant lodged an application for review to the Tribunal on 10 October 2006. (CB 26)
On the evidence before the Court both the delegate and the migration agent proceeded on the basis that a decision was to be made on 3 October 2006 unless a request for an extension of time was made on that date. The request was made and the extension was granted setting the decision date as 10 October 2006. That understanding was made clear not only by the letter from the delegate but also by the fact that the migration agent made submissions in support of the application. Importantly, the Applicant or the agent did not seek immediate release from detention by operation of the provisions of the Bridging visa sections of the Act. I am satisfied that both parties proceeded on the mutual understanding that the decision was not made two working days after 28 September but rather on the granted extended date being 10 October.
Section 72(2) and specifically the word “agreement” of the Act prescribes that the time within which a decision can be made is extended. It is clear here that the delegate’s decision was extended and therefore a visa was not deemed to have been granted. I was invited to consider a number of different meanings of the word ‘agreement’. The first of these was the Macquarie dictionary where the most natural meaning of the word in this context is:
the act of coming to a mutual arrangement
or:
the mutual arrangement itself.
Alternatively, the Oxford English Dictionary’s most natural meaning of the word in this context is:
a coming into accord or an arrangement between two or more persons as to a course of action, a mutual understanding, a covenant or treaty.
On the material before the Court there was an agreement, and that agreement resulted in the making of submissions in respect of the grant of the Bridging visa and by implication gives efficiency to that agreement. The time for making the decision must have been extended because without that extension, submissions by the agent on behalf of the Applicant would have been futile.
Ms Subhodyana on behalf of the Applicant advanced the argument that the Minister’s representatives were dealing with ordinary people who do not understand the detailed operation of either administrative or immigration law. Consequently it is submitted that it is the Minister’s representative’s duty to make clear in the letter of 3 October 2006 that if the extension is requested and agreed upon then, the effect will be that s.75(2) applies.
The decision maker noted that the decision will be made at 2pm on 3 October. The decision could have been made before the time extension requested expired which is 3pm on the same day. It is argued that the letter does not contain anything to the effect or the consequence of time extension. It is submitted that the recipients of that information were ordinary people even though in this case the Applicant had been represented by a migration agent. It was argued that it is the Department’s duty to elaborate clearly on the consequences should an Applicant seek the extension of time. The argument advanced on behalf of the Applicant is that the extension of time or the acceptance by the Minister or his representatives does not constitute a s.75(2) agreement.
I am not satisfied that this argument can be sustained in light of the evidence that the Applicant was represented at all of the relevant times by a registered migration agent who has demonstrated by his actions that he was conversant with the requirements of the Act and Regulations. The application for the Bridging Visa E- sub-class 050 initiated by the Applicant was assisted by Mr Chand of Saba Legal & Research Pty Ltd. All subsequent correspondence was between the Department and Mr Chand with copies addressed to the Applicant. All of the correspondence, which was prepared and forwarded on Saba Legal & Research letterhead, indicates that they are acting on instructions of the Applicant.
An examination of the sequence of events set out above clearly demonstrates that the Applicant was being represented by a person who understood the requirements of the Act and acted on the basis that an agreement had been reached in respect of an extension of time. The behaviour of the agent subsequent to the granting of the extension can only affirm that it was his understanding that an agreement had been reached and the extension had been granted on that basis. Nothing has been placed before the Court to indicate that the deeming provisions in respect of s.75 were activated at the relevant time. There is no record or publication of a decision made by a Minister’s representative on 3 October other than the letter granting the extension. Nor is there any application seeking the release of the Applicant on the basis that a Bridging visa came into operation at the close of business on 3 October based on the failure of the Minister to make a decision within the specified time limits.
A consideration of the material contained in the Court Book subsequent to the issuing of the “Record and Notice of Decision – Bridging Visa E – sub-class 050” on 10 October 2006 (CB 17-18) indicates that the conduct of the Applicant and his migration agent was inconsistent with the assertion now being made that there was not an agreement in respect to the extension of time. Throughout the period from 4 October 2006 through to December 2007 the Applicant and his agent acquiesced in the further dealings so the application was still on foot. Rather than acting on the two day rule, the Applicant and his agent pursued the process by taking positive steps to go to the Tribunal and responded positively to the Department’s inquiries in respect to the Bridging visa application. This behaviour is contrary to the argument now being advanced on behalf of the Applicant that the correspondence from the Department was unclear and was not interpreted as being an agreement for an extension of time as envisaged by s.75.
The Court was referred to the decision in BP Refinery (Western Port) Pty Ltd v Residents, Councillors and Rate Payers of Hastings [1977] 180 CLR 266 at 283 where the Privy Council made the following observations on the authorities on the implications of the term in a contract:
…for a term to be implied, the following conditions (which may have elapsed) must be satisfied:
(1) it must be reasonable and equitable;
(2) it must be necessary to give business efficiency to the contract, so that no term would be implied if the contract is effective without it;
(3) it must be so obvious that “it goes without saying”;
(4) it must be capable of clear expression; and
(5)(it must not contradict any express term of the contract).
When those requirements are considered against the issues before the Court the only agreement was to extend the time within which submissions may be made in respect to the issues raised in the delegate’s letter of 29 September. That extension of time would serve no useful purpose without there also being an agreement or a mutual understanding that there be an extension of time for the making of the decision consequent upon the provision of the answers requested in the delegate’s letter.
In Ansett (Operations Pty Ltd) v Commonwealth of Australia & Ors [1977] 139 CLR 54 per Barwick CJ at p.61 where His Honour said:
I would prefer, I think, to put the obligation not to do so upon the general rule that a party to a contract made on the footing on the continuance of a state of things made not by any Act within its power or control do anything to destroy or elatively to diminish that situation. But I would accept that the same result may be reached by the implications of a term with both positive and negative obligations to maintain and not destroy or relatively alter the basis on which the parties have contracted.
In the light of these authorities and their application to the facts of the matters before this Court, the parties agreed (there is no evidence to the contrary position other than the submission now advanced) that the Applicant would have an extension of time within which to respond to the concerns of the Minister and it was an implied term that the Minister would not do anything inconsistent with that right. Consequently, the Minister would not disturb the Applicant’s right to procedural fairness that had been agreed pursuant to 29 September and accepted on 3 October. As conceded by Mr Smith in his submissions, the contractual principles do not apply entirely. There is by way of analogy a mutual agreement or understanding which accords with the definition of agreement referred to above.
In Brambells Holdings Ltd v Baseth City Council [2001] NSWCA 61 per Heydon JA at [163] His Honour stated:
[25] The second relevant principle is that post-contractual conduct is admissible on the question of whether a contract was formed: Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 77; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 668, 669 and 672; B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR [97011] at 9149 and 9154-9156; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR [97023] at 9255..
The behaviour of the migration agent on behalf of the Applicant in this matter is consistent with the Minister’s submissions that the agent believed that there was an agreement for an extension of time.
On the material before the Court, I am satisfied that the prescribed period in the provisions of s.75 of the Act was extended by a mutual agreement which was confirmed by the subsequent behaviour of the parties. Consequently the claimed invalidity of the subsequent steps cannot be sustained and the application should be dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 27 August 2010
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